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Freedom to disagree is one all Americans should be able to support

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If we want artistic and expressive freedom for ourselves, we have to support it for those with whom we disagree. Many people have done just that in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case now awaiting a decision from the U.S. Supreme Court.

That case asks whether the government may force the owner of Masterpiece Cakeshop — Jack Phillips, a cake artist who serves everyone — to violate his faith by designing a custom wedding cake that celebrates same-sex marriage. While some in the media characterize the case as a clash between same-sex-marriage rights and religious and artistic freedom, that simplistic framing does not hold up to scrutiny.

{mosads}After all, many same-sex-marriage enthusiasts support Jack Phillips. For example, the First Amendment Lawyers Association, a group whose members represent many clients in the adult-film industry, filed a brief in support of Jack. The group wrote that it “does not endorse” Jack’s “motives,” but that it “need not agree” with his views to stand up for his freedom to decline to create art.


Similarly, First Amendment scholars Douglas Laycock and Thomas Berg, who have long advocated for same-sex marriage, also weighed in on Jack’s side, insisting that the government can’t force him to celebrate marriages that conflict with his faith. And a group of 479 artistic and creative professionals who filed a brief championing Jack’s cause argued that even though they “do not all agree on the same-sex marriage issue,” they think the government shouldn’t compel Jack to create custom art celebrating it.

These folks — among many others — show that you can both support same-sex marriage and support Jack’s artistic freedom.

Other proponents of same-sex marriage, however, have been unable to set aside their views on that issue, and so they’re willing to sacrifice artistic freedom. The American Civil Liberties Union is a prime example, and it has gone so far as to seemingly turn its back on its asserted principles.

On its website, the ACLU touts a broad view of artistic freedom: 

[A] free society is based on the principle that each and every individual has the right to decide what art or entertainment he or she wants—or does not want—to receive or create. Once you allow the government to censor someone else, you cede to it the power to censor you, or something you like. Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts.

But Jack, apparently, is excluded from this freedom. The ACLU has no concern about releasing the “poison gas” of government-compelled art so long as Jack is the recipient — no matter that their friends and allies might inhale it once “the wind shifts.”

Attempts to justify this double-standard fall flat. The ACLU told the Supreme Court that judges can’t be expected to distinguish between the creative professionals who craft artistic expression and those who don’t. Specifically, the group said that we cannot “put courts in the untenable position of having to adjudicate … the expressiveness of particular businesses” and “lines of products.”

But the ACLU sang a different tune in a brief filed with the U.S. Court of Appeals for the 2nd Circuit in Bery v. City of New York. That case asked whether the sale of visual art, like paintings, is constitutionally protected. And the ACLU wrote that “[t]he difficulty, in some situations, of determining whether an activity is expressive — a difficulty inherent in the constitutional phrase ‘the freedom of speech’ — is no excuse for shrinking the First Amendment to exclude visual art.” What was once “no excuse” for withholding First Amendment protection now appears, at least in Jack’s case, to be a good excuse for doing so.

The ACLU also claims that Jack does not deserve constitutional protection because he discriminates against customers. But that’s not true. Jack serves everyone; he simply declines to create custom cakes that celebrate events or express messages in violation of his faith. In fact, he told the gentlemen who are suing him that, while he was unable to design a wedding cake to celebrate a same-sex marriage, he would gladly sell them anything else in his shop or create a cake for them for a different event.

This willingness to serve gays and lesbians while declining to design custom cakes that celebrate same-sex marriage is not discrimination against LGBT individuals. Justice Anthony Kennedy appeared to recognize this during the oral arguments, labeling as “facile” the ACLU’s claim that Jack discriminates based on the “identity” of his customers.

Standing for freedom only for those with whom we agree is dangerous — because once their freedom is gone, ours disappears too. And once the “poison gas” is in the air — with the government empowered to compel art — it will eventually choke us all.

Kristen Waggoner is senior vice president, U.S. legal division, for Alliance Defending Freedom and argued on behalf of Jack Phillips and Masterpiece Cakeshop before the U.S. Supreme Court.

Tags American Civil Liberties Union Masterpiece Cakeshop v. Colorado Civil Rights Commission

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