Some essays published earlier as pamphlets
Samuel Moore, Edward Aveling, trans.
Besides, does anyone really think vendors should always lose compelled-speech claims? Should states get to force commercial artists to paint whatever a patron requests that’s closely tied to his protected status? If a Unitarian asks for a portrait depicting her vision of heaven (as filled with everyone), should a Westboro Baptist get to make the same painter depict his vision of hell (as filled with… almost everyone)? Should an Islamophobic sect get to force Muslim caricaturists to sketch mocking images of the Prophet? Clearly not.
Kahane, trans.Foreword by Friedrich A.
If you have any doubt that a cake designed for a wedding reception signifies something (“hooray for this new marriage!”) even before words are inscribed, try imagining one with words expressing skepticism about whether the happy couple had formed a true marriage or whether this was something to celebrate. Or imagine a cake with colors and shapes that were always associated with sadness and doom. These suggestions are absurd. They show that wedding cakes, by their inherent purpose and range of imaginable designs, are understood by everyone to signify this much at least: “Hooray for this new marriage!” And I do mean everyone. If you asked 100 people whether wedding cakes are celebratory of the marriage they’re used for, 100 would say yes (unless you mentioned that you were asking for a friend named Jack Phillips).
Step One: The First Amendment Covers Phillips’ Artistic Product
Thus, forcing Phillips to create an artistic (hence expressive) product, made to order for a same-sex wedding, forces him to create expression whose content he rejects. That’s because a wedding cake created for this wedding says “hooray for this marriage,” with words or not; and Phillips rejects the validity of same-sex marriages.
Step Three: Coercing Phillips Serves No Compelling Interest
It’s obvious—but irrelevant—that no one would morally equate support for same-sex marriage with the vicious commitments of our imaginary cult-leader. The lurid example only dramatizes the point behind step two of this argument: A cake designed for a particular wedding isn’t just an expressive product. It affirms and celebrates an idea, and one that Phillips rejects in this case: that this particular union is to be celebrated as a marriage.