The briefing for the petitioners and some of their supporting amici assert that Mullins and Craig asked Phillips to “design and create” a wedding cake. The Colorado appeals court repeated that formulation without citing anything in the record to support it. But Phillips’ own account of the exchange, in his affidavit, says nothing about a request that he “design and create” a cake. Instead, he says the couple told him simply that they “wanted a wedding cake for ‘our wedding’” and that he replied, “I just don’t make cakes for same-sex weddings.”
The freedom not to speak must include the freedom not to create speech, and not to participate in others’ speech. A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if he will play at other political events, and even if the jurisdiction bans discrimination based on political affiliation in public accommodations. Likewise, a photogapher or a wedding singer should not be punished for choosing not to create photographs celebrating a same-sex wedding, or for choosing not to sing at such a wedding.
But this First Amendment right must have its limits. The First Amendment shields refusals to speak, but generally not refusals to do things. Limousine drivers, hotel operators, and caterers should not have a Free Speech Clause right to exempt themselves from antidiscrimination law, because the law is not compelling them to speak or to create First-Amendment-protected expression. The same limit should apply to wedding cake makers.
Likewise, the First Amendment shields refusals to participate in others’ speech—say, as an actor or a musical accompanist or a singer—but not all conduct can be labeled participation: consider again the limousine driver, hotel operator, or caterer. This Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968). There must also be limits set on the variety of conduct compulsions that can be labeled “speech compulsions,” and on the degree and quality of involvement that can be labeled compelled “participation” in a ceremony. This case calls on this Court to define those limits, while still preserving the rights of those who are genuinely being coerced into creating First- Amendment-protected expression.
Antidiscrimination laws, like other laws, cannot claim categorical immunity from the Bill of Rights. Hate crimes laws must be enforced consistently with the Sixth Amendment, even if that makes it harder for prosecutors to get convictions. Civil liability for employment discrimination must be imposed consistently with the Seventh Amendment—even though the prospect that certain juries might not properly enforce the law likely discouraged Congress from authorizing jury trials and damages awards in the original Civil Rights Act of 1964.21 Likewise, antidiscrimination laws cannot be enforced in ways that violate the First Amendment. See, e.g., Hurley, 515 U.S. at 572-73; Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Hosanna- Tabor Evangelical v. EEOC, 565 U.S. 171 (2012).
But antidiscrimination laws, like other laws, should not be stymied by attenuated claims of incidental burden, where no real constitutional problem is present. See, e.g., Rumsfeld [v. FAIR], 547 U.S. at 67. Petitioners are “attempt[ing] to stretch . . . First Amendment doctrines well beyond the sort of activities these doctrines protect,” and “overstat[ing] the expressive nature of their activity and the impact of the [Colorado antidiscrimination law] on it, while exaggerating the reach of our First Amendment precedents.” Id. at 70. This Court must draw a line that properly respects both the First Amendment rights of those who are truly being compelled to create speech, and the legitimate interests of states that are trying to protect their citizens from discrimination. Bakers, including bakers of wedding cakes, are on the constitutionally unpro- tected side of the line.