While the ACLU uses the First Amendment as justification for making gay erotica available in school libraries, the argument can cut both ways.
A growing number of states are signing on to an amicus brief supporting the rights of small business owners who choose not to serve some clients, with South Carolina Attorney General Alan Wilson the latest to join the coalition. Some 16 state attorneys general are arguing in the case of Scardina v. Masterpiece Cakeshop Inc., currently before the Colorado Court of Appeals, that custom cakes are works of art and subsequently protected by the First Amendment.
“The right to free speech is precious to all our citizens and cake bakers are no different,” Wilson said. “The U.S. Supreme Court has already ruled in favor of this same small business in a previous First Amendment case so we know we’re on solid legal ground.”
Jack Phillips, owner of Masterpiece Cakeshop in Colorado, rocketed to unwelcome fame when he declined to make a custom cake celebrating a gender transition. He said the service “would violate [his] religious beliefs to send a message to anyone that he would celebrate a gender transition.”
Sued on the basis that he had violated the Colorado Anti-Discrimination Act (CADA), Phillips was found to be in violation of CADA and not eligible for First Amendment protection.
The coalition, however, contends that the “Court here can look to the Supreme Court’s repeated protection of art, apply the same principles here, and recognize that Mr. Phillips is protected in this case by the First Amendment’s guarantee of Freedom of Expression.”
Freedom of speech for business owners is a priority of the coalition and has been upheld in court several times. The Arizona Supreme Court ruled in 2019 that the City of Phoenix could not compel calligraphers to fashion custom wedding invitations for homosexual weddings.
Joining Attorney General Wilson are the attorneys general of Alabama, Alaska, Arkansas, Arizona, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Dakota, Texas, and West Virginia. Read the coalition’s amicus brief here.
