The U.S. Supreme Court takes up a free speech case in the October term, and making the right decision should be a piece of cake. The justices will be asked to decide whether the government can require someone to say something he doesn’t want to say.
The impact of the court’s ruling on Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission will extend far beyond Colorado and the case of Jack Phillips, a Lakewood, Colo., baker who refused to bake — and decorate — a wedding cake for two men. Mr. Phillips argues that being compelled to do that under penalty of law would infringe his right to free expression, and his right to the free exercise of his religious beliefs.
Others have been put in similar binds in Kentucky, New Mexico and Oregon by litigation brought by the gay-rights lobby demanding “tolerance” while giving none in return. Bakers, photographers, florists and other creative professionals have similarly stood up to the bullying, and have more than passing interest in the Masterpiece Cakeshop ruling.
The High Court’s decision — likely to be 5 to 4, depending on which way Justice Anthony Kennedy swings when he wakes up on the day he must decide — will probably be withheld until the final day of the term at the end of June.
Speculating which way justice turns is pointless, but it’s interesting that several lower courts seem to have grasped what’s constitutionally at stake in these free-speech cases.
Last week U.S. District Court Judge Paul L. Maloney ordered the City of East Lansing, Mich., to enable the owner of an apple orchard to return as a vendor at a city-operated farmers market.
Steve Tennes of Country Mill Farms sued the city in May after it banned him from the market in retaliation for his December Facebook post announcing that his farm and orchard would continue to host weddings, but only weddings with a female bride and a male bridegroom.
Mr. Tennes, a Roman Catholic, had sold his apples and other items there for seven years, and faced the prospect of considerable economic harm. If he were unable to sell his produce there, some of it would spoiled.
Judge Maloney, who was appointed to the bench by President George W. Bush in 2007, ruled that the city “had amended its Vendor Guidelines and used the [changed language] to deny Country Mill’s vendor application.”
This smelled of ex-post facto law, changes designed to fit the prosecution of a certain individual. “There exists a substantial likelihood that plaintiffs will be able to prevail on the merits of their claims for speech retaliation and for free exercise of religion,” Judge Maloney wrote.
The Lansing State Journal reported that a steady stream of customers and a few protesters greeted Mr. Tennes at the farmers market on Sunday, where he sells apples, cider and doughnuts.
Neither gays nor straights who object to Mr. Tennes’ values and views are compelled to buy his apples, and apples, cider and doughnuts, which are readily available elsewhere. This was the second victory for free speech and tolerance. Earlier a T-shirt printer won a state court ruling in Kentucky that he was within his religious-liberty rights as a Christian to refuse to print T-shirts promoting a message in a gay-pride parade.
Tolerating the opinions and rights of others is not always “a piece of cake,” but that’s how tolerance works. The Constitution forbids the suppression of speech, and it forbids compelling the expression of speech. This is language plain and clear enough for anyone to understand, and the Supreme Court has the opportunity — and the responsibility — to say again what should be obvious to everyone.
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