Opinion: Jack Phillips’ cakes are expression and should be protected

Should you have to advocate for ideas not your own? Writing for the majority in Obergefell v. Hodges, the decision that mandated same-sex marriage nationwide, Justice Anthony Kennedy wrote that same-sex marriage “involve[s] only the rights of two consenting adults” and therefore poses no harm to others who could “continue to advocate” for traditional marriage; their rights are protected under the First Amendment.

The First Amendment prevents Congress from making laws that abridge the right to free expression and free exercise of religion and thanks to the 14th Amendment, state and local governments, cannot make such laws either.

The flip side to the right to expression is the right to be silent. The government cannot coerce individuals into advocating beliefs contrary to their own.

Last year’s Supreme Court decision 303 Creative LLC v. Elenis affirmed that right. It said the state cannot coerce individuals into advocating for ideas with which they disagree even at their place of business. “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” wrote Justice Neil Gorsuch

Advocating or expressing belief isn’t just done with words but through symbols like the Star of David, the Republican elephant and the Democratic donkey, peace signs, the Hindu Om figure, pink triangles, the Gadsden Flag, and through events that celebrate and commemorate beliefs.

The government cannot force an atheist to wear a hijab, a musician to play the communist Internationale, or a Kosher deli to serve a ham sandwich. Likewise, it cannot force a baker to make a blue and pink cake for a gender transition celebration. The baker has the right not to advocate.

This right, protected by the First Amendment, was the subject of this week’s Colorado Supreme Court hearing. Autumn Scardina, a biological man who lives as a woman, sued Jack Phillips, owner of the Lakewood Masterpiece Cakeshop, under Colorado’s public accommodation law after the baker refused to make a gender transition celebration cake.

Scardina initially went after Phillips by filing a complaint with the Colorado Civil Rights Division. Phillips countersued and the state, chastened by an earlier U.S. Supreme Court loss in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, backed off. If the Colorado Supreme Court fails to uphold Phillips’ rights, it is likely to be castigated once more.

The right to expression free of state coercion is essential not only for individual liberty but for a free society with a thriving marketplace of ideas.

Can a person be born into the wrong body? That’s a metaphysical question.

Can a person have a different gender than his biological sex? That’s for each person to decide.

Should individuals who live as the opposite sex be allowed to use sex-segregated spaces that do not correspond with their biological sex (bathrooms, locker rooms, prisons, sports teams, etc.). That’s a political question.

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Science cannot answer these answers. It can only answer questions about biological sex affirming that there are two sexes, male and female, which are determined at the beginning of life. Everything else is up for grabs.

The First Amendment protects individuals as they answer metaphysical, cultural, and political questions about identity and other issues. The First Amendment also protects the free exercise of religion. Differing faith traditions including atheism provide different answers to metaphysical questions about the nature of being, the meaning of life, relationship to deity or deities, revelation, and morality. This includes questions about gender.

The state on its own or at the behest of an individual cannot under the Constitution deny individuals the right to advocate or the right not to advocate by word or by symbol. The Colorado court can spare the taxpayer another trip to D.C. by affirming it.

Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.

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