Will SCOTUS Heed a 182-Year-Old Warning in Wedding Cake Case?


This article is part of a series focusing on Lens of Liberty, a project of the Vernon K. Krieble Foundation.

In her Liberty Minute titled “Flocks of Sheep,” Helen Krieble quotes a passage from Alexis de Tocqueville’s Democracy in America that is just as pertinent today as it was when it was published in 1835:

A hundred and seventy-five years ago, Tocqueville warned Americans about a new kind of oppression from our own government. He said:

The government covers the surface of society with a network of small, complicated rules, through which the most original minds and the most energetic characters cannot penetrate; the will of man is not shattered, but softened, bent and guided; men are seldom forced by it to act, but they are constantly restrained from acting; such a power does not tyrannize, but it compresses, extinguishes, and stupefies a people until a nation is reduced to nothing better than a flock of timid animals of which the government is the shepherd.

We must look through the lens of liberty and take back our freedom before it’s too late.

Bearing in mind Tocqueville’s condemnation of government which “compresses, extinguishes, and stupefies a people,” let us consider a current Supreme Court case which has the potential of fulfilling Tocqueville’s prophecy.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, a legal battle being fought by Alliance Defending Freedom on behalf of Jack Phillips, a cake artist whose religious beliefs will not allow him to create same-sex wedding cakes. At question is Jack Phillips’ First Amendment rights of both freedom of religion and freedom of speech.

On Tuesday, all eyes were turned to Washington, D.C., where the Supreme Court began hearing oral arguments for the high-profile case. Although rarely reported on, what happened behind the scenes — the filing of amicus curiae briefs — is just as important to consider.

Of particular note is one amicus brief filed by 479 creative professionals from all 50 states, D.C., and Puerto Rico who are concerned that the Court’s decision could jeopardize their freedom of expression. While the cake artists, florists, photographers, songwriters, actors, painters, musicians, cartoonists, and journalists who filed the brief have differing views on gay marriage, they all agree that the government should not be able to dictate what messages they can and cannot expresses:

Artistic speech, whether expressed through painting a picture, taking a photograph, or designing a cake, is constitutionally protected and should be treated as such. The expression should neither be silenced nor coerced. Though the concern is currently most pressing in the same-sex wedding context, it is not so limited. Creative professionals of all stripes stand to suffer from undue compulsion, depending on how this Court rules here.

The brief gives specific examples of how this decision will effect much more than just the issue of same-sex marriage:

Just consider the impact of this compulsion in other conceivable contexts. Should an African-American supporter of “Black Lives Matter” be required to make and design a cake for a white nationalist function? Must a graphic designer who supports gun control create advocacy literature for the National Rifle Association? Is an atheist photographer obliged to take and publish pictures of a Christian baptism?

Answers to these questions should not lie with the ideology of the bureaucrats involved, or the latest popularity polls, but with a grounded understanding of the Free Speech Clause. And this understanding does not compel citizens to utter messages — through art of their own making — that betrays their values, wills, and consciences, as well as their tongues.

The artists conclude their brief by rebuking the “apparent end-game of this compulsion” which is to force artists to promote a particular political ideology sanctioned by the State:

In compelling creative professionals to create art promoting a message they would not say otherwise, the government deprives them of dignity and autonomy, treating them like puppets that perform solely for the government’s pleasure.

“Puppets that perform solely for the government’s pleasure” — that sounds strikingly similar to Tocqueville’s “flock of timid animals of which the government is the shepherd.” It is obvious then that there is a lot more at stake here than just a wedding cake.

Terry Schilling

Terry Schilling is executive director of the American Principles Project.

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