To the Editors: Given David Cole’s long-standing involvement in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, it is odd and a little disturbing that he avoids even mentioning core issues of the case in his recent piece, “This Takes the Cake” [NYR,
July 19]. Cole never once mentions the issue of compelled speech. As Cole describes it, the case hinged on whether Masterpiece Cakeshop’s proprietor, Jack Phillips, had a right to refuse to sell a product (a cake) to a same-sex couple, and whether Phillips and his defenders could legitimately find a “right to discriminate” in the First Amendment. In Cole’s reading of Justice Anthony Kennedy’s “general rule,” the provision of equal access to goods and services plainly required Phillips to sell the wedding cake to the same-sex couple.
But this case has never been about such a small and limited question. It is, of course, not possible to sell a cake that has not yet been made. As Cole knows quite well, customers of any race, gender, creed, or sexual orientation have been free to purchase cakes from Masterpiece Cakeshop. The same-sex couple in this case did not merely wish to buy a cake. They asked Phillips to custom-design a cake with a highly specific theme and a message, celebrating the marriage of two men. Before selling the cake to the couple, Phillips would have had to put his creative and aesthetic talents to work to produce an elaborately designed, highly expressive product conveying a message in which he did not personally believe.
The making of an elaborate wedding cake with a stylish and prominent visual component is, indeed, a highly expressive undertaking, and in that respect is similar to other media such as writing, painting, or sculpture. It may help to clarify the issue if we take an analogy from one of those other arts. Suppose that a publisher approaches a popular writer of spy thrillers and makes him an offer for a novel about a lesbian couple. The author replies that this isn’t an area in which he has any interest or experience, and he must decline. According to Cole’s logic, the author of spy thrillers is in violation of the general rule for “refusing to sell” a product, and should be sued for illegal discrimination. But of course, the author in this hypothetical example is not committing any kind of illegal discrimination. Nor would those who came to the author’s legal defense be looking to find a “right to discriminate” within the First Amendment. They would cite First Amendment language and precedent to make the simple point that, just as the amendment protects citizens who publicly express views and ideas from being punished for what they say, it also protects people from being forced to engage in speech and expression that they do not wish to engage in. Censorship and compelled speech are both explicitly wrong and unconstitutional under any reading of the First Amendment, and Masterpiece Cakeshop is a quintessential First Amendment case. In a free society, we do not tell a creative artist—whether a writer, filmmaker, or a maker of custom-designed cakes— what the content of his or her work will be. To make these simple points is to demolish Cole’s reductionist and one-sided treatment of Masterpiece Cakeshop v. Colorado
Civil Rights Commission. One really might have expected a more sophisticated and nuanced analysis from no less an authority than the national legal director of the ACLU.
Michael Washburn New York City