Right of Association–Not Speech or Religion–Is the Real Cake


I predict the Supreme Court will side with the Christian cake-maker over Colorado and the gay marrieds. This is not a bold prediction, from the sound of the arguments the other day.

High Court debates wedding cakes and forced expression

Combine forced expression with religious freedom, and it should be an easy First Amendment win for Jack Phillips, the owner of Masterpiece Cakeshop.

The optics aren’t great for gays on this one. They’ve already won the right to marriage—a complete gut-punch for traditional Americans—and if that’s not enough, now you imagine two preening, haughty gay men demanding that the humble Christian cake baker obey their royal demands, like some absurd combination of Nathan Lane, Marie Antoinette and the evil stepsisters ordering Cinderella around. Should he decorate their shoes while he’s down on his knees?

This might be going too far, even for the liberal justices.

The problem with compelled speech and religious freedom—Phillips’ defense here—is a lack of sturdiness. Courts don’t generally like religious objections to general laws, because they’re dragged into poking around the sincerity of the belief. The objections are also anti-social—typically, a duly-elected legislature of the whole people has set down a rule, and courts have to decide if the case before them is worth upending that whole arrangement.

Meanwhile, it’s a little awkward for Phillips to argue that smearing frosting or affixing two miniature plastic men to the top of a cake is really “speech” or that he’s an artist engaged in expression when he throws on the silver sprinkles. It’s close, but it’s not the real issue.

It’s much easier to simply say that Phillips has a right not to associate with gay people. Affirm that right, and you need not trifle with issues of religious sincerity or the parameters of “speech”.

Call it freedom of association, the right of association or the right of exclusion. It boils down to the same thing: it is a fundamental human right to decide who one deals with, works with, lives with or otherwise interacts with, provided the dances are voluntary. [Freedom of Association and the Right to Exclude, by Stuart White, Journal Of Political Philosophy, December 1997]

Waltzing into a cake shop is pretty voluntary.

It’s high time the right of association asserted itself in American jurisprudence, just as the “right to privacy” did a hundred years ago.