The First Amendment Allows You to Draw Your Own Conclusion on Same‐Sex Marriage
Earlier this year in Masterpiece Cakeshop, the Supreme Court contended with the issue of whether cake-baking is protected speech under the First Amendment, and thus whether a Christian baker could refuse to design a wedding cake for a same-sex ceremony. The Court ended up punting on the case’s major questions, but now the Arizona Supreme Court is facing a similar issue, this time with calligraphers instead of bakers.
Artists Joanna Duka and Breanna Koski are practicing Christians who own and operate Brush & Nib, an art studio in Phoenix, Arizona. In addition to designing wedding invitations using calligraphy, they produce recreations of wedding vows and other custom artistic works. Phoenix’s public accommodation law would require them to design invitations and vows for every ceremony—even those that conflict with their sincerely held faith. The city imposes draconian punishments for failing to comply with this law; Joanna and Breanna could face fines of $2,500 per day, or up to six months in jail. It seems that in Phoenix, Christian artists who oppose same-sex marriage must choose between practicing their faith and running a business if they want to avoid both bankruptcy and jail time.
Cato of course has a long history of supporting both gay rights and the First Amendment. We were the only organization in the entire country to have filed briefs supporting the petitioners in both Masterpiece Cakeshop and the marriage cases that ended in Obergefell v. Hodges (2015). Now, joined by professors Dale Carpenter and Eugene Volokh—who differed on Masterpiece Cakeshop because they consider cakemaking not sufficiently expressive for the First Amendment to apply—Cato has filed an amicus brief arguing that expressive small businesses (including calligraphers) are indeed protected from speech compulsions.
The First Amendment, in stark contrast to Phoenix’s public accommodation law, protects people from government-compelled expression. The Supreme Court in Wooley v. Maynard (1977) established that even forcing a driver to display a license plate with the motto “Live Free or Die” violated that person’s “individual freedom of mind.” It would surely violate someone’s conscience far more to be forced to design art or otherwise convey messages for a ceremony with which they disagree.
Besides, the Arizona Supreme Court previously held that tattoo design is art, and that both the design and sale of such art is protected by the First Amendment. According to the Arizona Court of Appeals in this case, however, calligraphy—unlike tattoo design—is not “inherently expressive.”
The lower court ignored all historical evidence proving that calligraphy is art. Not only is calligraphy considered a fine art in Chinese tradition, but it also has had a profound effect on American history. After all, our own Declaration of Independence is a masterpiece of calligraphy, designed by Timothy Matlack. If Matlack were forced to design royal proclamations declaring the colonists traitors, his freedom of conscience would have been severely violated—and the same applies to the Brush & Nib artists.
Wooley also provides an important limiting principle for protecting individual freedom of mind: it does not apply to all conduct, only First Amendment-protected expression. Far from the blanket discrimination that hoteliers and restauranteurs often leveled at African-Americans in the Jim Crow era, refusing to create a wedding invitation is simply refusing to speak in a way that would betray one’s faith or compromise one’s conscience. Just as the government cannot force a patriot like Timothy Matlack to denounce his fellows, or an atheist to endorse Scientology, the government cannot force orthodox Christians, Jews, and Muslims to design art for same-sex weddings.
