And yet a somewhat analogous matter has been decided by the Indiana Supreme Court in the opposite manner. In a case dealing with personalized license plates the court ruled that the plates are speech by the government.
A personalized plate is produced by government for a fee. And rather frequently that personalization contains a message of some sort. A baker makes a cake for a fee, and easily that cake may contain a message.
And I agree that when I see a hearse with the personalized plate “U R NXT” I assume it is the vehicle owner, and not the state, that has a particularly odd sense of humor but yet the Indiana Supreme Court ruled customized plates are government speech and subject to restrictions imposed on content.
This state high court ruling is in line with US Supreme Court ruling (see Walker v Texas Division) that a state may refuse to permit certain classes of specialty license plates based upon the message that would be inferred by having a state issued plate with a particular theme. The state of Texas won the 5-4 case which upheld their refusal to produce a Sons of Confederate Veterans specialty plate.
Good point. I don’t think anyone at the wedding would look at the cake and think “Wow, the guy at the bakery is in love with John! I wonder how Mike feels about that?”
Although they might think “Who in the hell puts text on a wedding cake anyway? Did they actually buy their freaking wedding cake at Costco? Are we sure they’re REALLY gay?”
I think many people, possibly quite a few in this thread, if told that an artist received a grant for making cake art would sneer that it isn’t art and that “my three year old could do that!”
If you open a business with the intent to sell commissioned portraits, then you are in business to sell commissioned portraits to everyone.
You can have restrictions, I suppose, “I don’t do kids,” or “I only do kids”, or pets or whatever, but as long as it is consistent, and not a protected class. So, “I don’t do kids.” should be fine, but “I don’t do black kids” would not be.
If you do commissioned portraits for weddings, then you should do them for all weddings, not just the ones that you do not object to.
If I setup a sidewalk stand where I do caricatures for $20, can I decide to only draw white people?
That’s where the difference comes in, if you put up your shingle and say publicly “I sell stuff” you have to sell to everyone (for certain legally identified values of everyone). If you’re a private club, where every interaction is individually reviewed and NO expectation of service is made, you have a freer hand.
I think SCOTUS will have to say whether expressive art 1st amendment protections override suspect class protections, but I don’t think it’s a slam dunk. Then they’ll have to decide whether cake making can fall under that umbrella of expressive art.
Does this artist only paint subjects that display or suggest heterosexual affection? Does the artist resist painting a portrait of two men (not to be sexist, it’s just for simplicity - assume all examples can be adjusted to apply to a portrait of two women) under all circumstances?
[ol][li]Would the artist paint a portrait of a father and son?[/li][li]Of a father and adult son?[/li][li]Of two adult brothers?[/li][li]Of two adult brothers, or a father and son, where one man had his arm around the other’s shoulders?[/li][li]Of a father and son who were holding hands? Does the age of the son matter?[/li][li]Of two men who are business partners and want a portrait of them to show in their company’s lobby?[/li][li]Of two men who happen to be gay (but not romantically involved with each other) and who are business partners and want a portrait of them to show in their company’s lobby?[/li][li]Of two men who are business partners and want a portrait of them to show in their company’s lobby with one man’s arm around the other’s shoulders?[/li][li]Of two men who are business partners and want a portrait of them to show in their company’s lobby with the two men shaking hands?[/li][li]Of two men in wedding formal-wear, if they were the couple getting married?[/li][li]Of two men in wedding formal-wear if they were the fathers of the couple getting married?[/li][/ol]
To clarify your hypothetical, which cases (if any) does the painter refuse?
Is this image unacceptable as a subject?
Is this image?
Is this image?
Does it come down the artist not being able to make a rule about how the men are posed (if not overtly sexual) or dressed (ditto) but rejecting the contract because of who the men are?
I don’t know that the specifics much matter. Free speech means that a person is free to speak, or not speak. How a person exercises this is at their discretion so the only key questions are whether the conduct is speech, and whether that overrides the suspect class protections. The details of who a person is rejecting is irrelevant.
It’s the same calculus if a opposite sex Jehovah witness couple seeks a wedding portrait to be painted and the painter refuses because he only does civil weddings and not religious ones.
I suspect that SCOTUS could answer the first question, that cake making isn’t expressive speech sufficient to warrant 1st amendment protections and then punt on the second question.
ISTM there is a federal constitutional right to free speech/religion and no state legislative declaration making homosexuals a suspect class can overcome that right. The court might take this opportunity to turn homosexuality into a suspect class but I don’t see how that happens any time in the near future. I don’t thin the current court will do it and I don’t think Trump will replace any of the conservatives with someone that will mostly because Thomas is the only one that has any likelihood of dying. Things are much more likely to go the other way. I bet Ginsburg is really sorry she didn’t retire when she had the chance.
She would have had to resign before the 2014 congress sat, and even then would have had to overcome a filibuster to be replaced with an Obama pick.
If she was going to retire, she really should have retired in 2010, when it would only take one republican senator to break a filibuster. I don’t think that Obama could have gotten a justice confirmed past that.
McConnell would have gone on about how a president in his last term cannot pick a SCOTUS, and by the 2016 election, there would have been 2 open seats to be filled.
On further reflection, it’d be rather odd for the wedding portrait-painter to actually be at the wedding, wot? I don’t expect the reception would be stopped for a few hours while the wedding couple posed. Rather, they might pose in their wedding clothes several days before or after the wedding or, even more simply, have the painter work from a photograph taken at the wedding. The level of potential “gay-ick!” the painter in exposed to is significantly reduced.
This also kind of puts me in mind of one of those “lateral thinking” puzzles:
*A man walking into a portrait-painter’s studio and says “I have a photo from a wedding. Can you render it in oils?”
The painter takes one look and hands it back, saying “Nope. Can’t do it.”
The customer becomes very angry and calls the painter “a fucking unpatriotic piece of scum-sucking shit!”
WHY?*
The men in the photo are David and Steven, brothers of the customer. The image is from the (hetero, or if one prefers, “traditional”) wedding of the customer. The reason the men are standing so close is because this image is cropped from a much larger photo of the entire family; all fifteen of them crowding together. It’s the only image anyone has from that day of the two brothers next to each other. Both were on leave from their military units (David from the Marines, Steven from the Army Rangers) and both returned to active duty right afterward, and both were killed in action and posthumously decorated for bravery. Their parents want an oil panting of them to display in their home.
OK, so we’ve established that if Mary goes into the bakery and says “I want a cake that says ‘I love you, John’”, that that’s Mary’s speech, not the baker’s, and he can’t object to that on artistic grounds.
Now suppose instead that Mary goes into the bakery and says “My husband John and I just had a big fight, and I figured that buying him a cake would be a good way to make up. I’m not sure of the details; just come up with something that you think is appropriate.”, and the baker then decides to fulfill this request with a cake that says “I love you, John”. Now, there is some creative action taken by the baker, but I would maintain that the message is still attributable to Mary.
If the painter has a shop, and offers to paint the portrait of customers who come in, and suddenly says, “Oh, but no blacks,” then, yes, he is breaking the law. He should not so much “be compelled to paint” but should, instead, be “punished under the law” for refusing. (It isn’t exactly the same thing.)
If you’re running a business, then you’re bound by the rules of businesses. Just saying, “I am an artiste!” does not allow you to break the law.
