Abstract
INTRODUCTIONIs baking a cake for a same-sex wedding or photographing the bride-andbride or groom-and-groom "speech" triggering free speech scrutiny? Or is providing wedding services better viewed as conduct that does not implicate the Free Speech Clause?Marriage equality is now a constitutionally protected right in the United States.1 The Supreme Court has declared that denying same-sex couples the right to marry violates substantive due process and equal protection.2 This decision was cause for widespread celebration.3However, not everyone is pleased. Many oppose same-sex marriage on religious grounds.4 Indeed, some in the wedding industry claim that it violates their religious beliefs to participate in any way in these marriages.5 To do so, they argue, would make them complicit in sin.6 Wedding photographers do not want to take pictures of same-sex unions;7 wedding bakers and florists do not want to bake cakes or arrange flowers for same-sex ceremonies;8 and bridal shop owners do not want to sell dresses to same-sex brides.9In many places, these vendors are free to refuse service to same-sex couples, as neither federal10 nor most state public accommodations law bars discrimination based on sexual orientation.11 In jurisdictions with LBGT protections, religious vendors have claimed that these anti-discrimination laws violate their First Amendment rights. They have advanced religious claims and speech claims.For the speech claims, whether baking a cake or taking a picture counts as speech is pivotal. After all, the Free Speech Clause prohibits the "abridging of freedom of speech."12 At the same time, the clause has been interpreted to protect conduct found to have an expressive component. For example, burning a cross on a black family's lawn may communicate hostility and even a threat of violence.13 Burning an American flag often communicates disapproval or disgust with U.S. policy.14 The Supreme Court has recognized both as expressive conduct implicating the Free Speech Clause.Should creating a cake or photograph likewise be deemed expressive conduct that triggers some level of free speech scrutiny? In other words, do religious bakers and photographers have a compelled speech claim if the government forces them to render services pursuant to public accommodations law?15 According to the vendors, these laws essentially compel them to express approval of same-sex marriages-something contrary to their deeply held beliefs.16To be clear, the question for this Article is not whether public accommodation laws violate the Free Speech Clause but whether they even trigger free speech review. Or to put it another way, the question is not whether the wedding vendors' conduct is ultimately protected by the Free Speech Clause, but whether it is covered by it at all.The two types of vendors are not entirely analogous. Photography, a branch of art, has long been recognized as a mode of communication in much the same way words are.17 Baking, in contrast, has not. Thus, the photographers' challenge also raises the question of whether conduct involving words or photographs necessarily amounts to speech that is covered by the Free Speech Clause.Part I describes the current free speech doctrine surrounding expressive conduct. In particular, it examines the Spence v. Washington test for deciding whether conduct is deemed expressive or not.Part II considers whether a cake baked by a vendor for a same-sex wedding should be covered speech. It proposes that compelled expressive conduct-a little-analyzed category-does not trigger free speech scrutiny unless the compelled actor is forced to convey a message with which she disagrees. To find otherwise would exacerbate a recent trend, characterized as revival of Lochner-era libertarianism, of using the First Amendment to skirt government regulation. Part II then concludes that baking a cake is not covered speech, as the business context essentially neutralizes any potential message of endorsement. …