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It’s entirely possible to support both artistic freedom and same-sex marriage

by James Gottry, opinion contributor - 10/25/17 10:45 AM ET

“I support same-sex marriage. I support Jack Phillips and Masterpiece Cakeshop.”

These two declarations can co-exist.

Some have argued that support for Jack Phillips constitutes opposition to gay marriage or the LGBT community. Because Jack, a Colorado cake artist, declined an invitation to create a custom wedding cake celebrating a same-sex marriage, some insist that his supporters must be intolerant. The rallying cry, #JusticeForJack, represents cake in the face of the LGBT community, or so the story goes.

{mosads}The reality is something altogether different.

Jack’s case is not just — or even primarily — about same-sex marriage. It’s true that the factual backdrop to Masterpiece Cakeshop v. Colorado Civil Rights Commission is a request for a custom cake celebrating a same-sex wedding. But the legal principle at issue before the U.S. Supreme Court is something far grander: whether the government may coerce individuals to create custom art that violates their conscience. And the high court’s ruling has the potential to impact not just Jack and his artistic expression, but creative professionals across the country, from all walks of life.

When the case is argued on Dec. 5, it will not mark the first occasion on which the Supreme Court has considered a case with such contrasting players: on one side, a devout individual or group of individuals holding a socially unpopular view; on the other side, the machinations of the state, tuned to coerce allegiance to an ideal. Nor would a ruling for Jack represent the first time that the Supreme Court has prioritized principle over popular sentiment. History, in this matter, has a great deal to teach us.

In 1943, the Supreme Court issued its ruling in West Virginia State Board of Education v. Barnette, holding that a law requiring students to salute the flag and recite the Pledge of Allegiance compelled expression and thereby violated the First Amendment. This decision, seemingly a blow against patriotism, came at a time when patriotism was at its zenith, as the second great war raged and the fate of civilization itself hung in the balance.

The Supreme Court did not lose its bearings in the midst of this global tsunami. Instead, it pointed to the “fixed star in our constitutional constellation … that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Three-quarters of a century later, Barnette is — if not something of a jurisprudential fixed star itself — at least a lighthouse for those seeking to navigate constitutional waters. Its enduring value is evidenced in and enhanced by the multiple amicus briefs that support Jack Phillips while also voicing continued support for same-sex marriage and LGBT individuals.

As one example, consider the brief of the First Amendment Lawyers Association. In one breath, FALA lauds the Supreme Court’s pro-LGBT rulings in Lawrence v. Texas (invaliding a state law prohibiting same-sex sexual activity) and Obergefell v. Hodges (invaliding state laws defining marriage as the union between a man and a woman) as “an important part of the continuing movement … to protect individual liberties.” In the next, the group cites Barnette for the conclusion that the government is “barred from compelling others to agree with same-sex marriage or to show support for the practice by speech or symbolic act.”

They do this without a hint of cognitive dissonance because these seemingly discordant positions are in fact harmonious, just as the most patriotic of Americans can vehemently oppose a forced expression of patriotism. This is because, as FALA explains, “our constitutional system protects matters of conscience, and it is not up to the state to dictate individual beliefs.” To find otherwise would be to rebut “the First Amendment’s essential presumption that constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered.”

If the Supreme Court rules for Jack Phillips, it will not be ruling against same-sex marriage. Instead, it will be a validation of principles articulated not only in Barnette, but also more recently in Obergefell, when Justice Kennedy wrote, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

Jack is asking the high court to continue to protect the First Amendment rights of creative professionals, regardless of their position on same-sex marriage or any other topic. The government should not force individuals to celebrate events or express ideas that violate their conscience.