Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his Lakewood store in 2014. (Denver Post file)
Should I express a different opinion than I do? Justice Anthony Kennedy, who wrote the majority opinion in Obergefell v. Hodges, the decision that mandated same-sex marriage nationwide, said that same-sex marriage is “a[s] It is “only the right of two consenting adults” and therefore does no harm to others who “continue to insist” on traditional marriage, whose rights are protected by the First Amendment.
The First Amendment prohibits Congress from making any law abridgement of the right to freedom of expression or the free exercise of religion, and the Fourteenth Amendment prevents state and local governments from making such laws.
The flip side of the right to expression is the right to silence: the government cannot force an individual to assert beliefs that contradict their own.
Last year’s Supreme Court decision, 303 Creative LLC v. Ellens, acknowledged that right, holding that states cannot force individuals to express ideas they disagree with, even in the workplace. “The First Amendment portrays America as a rich and complex place where all people are free to think and speak as they wish, without government demands,” Justice Neil Gorsuch wrote.
Beliefs are asserted and expressed not only through words, but also through symbols such as the Star of David, the Republican elephant, the Democratic donkey, the peace sign, the Hindu Om statue, the pink triangle, the Gadsden flag, and events that celebrate and commemorate beliefs.
The government cannot force atheists to wear hijabs, musicians to play the Communist Internationale, or kosher food stores to serve ham sandwiches. Similarly, the government cannot force a baker to make a blue and pink cake for a gender transition celebration. The baker has the right not to insist.
This First Amendment right was the subject of a case before the Colorado Supreme Court this week, when Autumn Scardina, a biological male who lives as a woman, sued Lakewood Masterpiece Cakeshop owner Jack Phillips under Colorado’s public accommodations law after the shop refused to make a cake to celebrate her gender transition.
Scardina initially pursued Phillips with a complaint to the Colorado Department of Civil Rights. Phillips countersued, and the state, chastised after losing Masterpiece Cakeshop Inc. v. Colorado Civil Rights Commission at the U.S. Supreme Court, dropped the suit. It’s likely to be criticized again if the Colorado Supreme Court doesn’t uphold Phillips’ rights.
The right to expression free from state coercion is essential not only to individual freedom but also to a free society with a thriving marketplace of ideas.
Can one be born into the wrong body? That is a metaphysical question.
Can a person have a gender different from their biological sex? That’s a decision for each individual.
Should individuals who identify as the opposite sex be allowed to use gender-segregated spaces (bathrooms, locker rooms, prisons, sports teams, etc.) that do not match their biological sex? This is a political question.
Science cannot answer these questions. All it can answer is the question of biological sex, that there are two sexes, male and female, and that this is determined early in life. Everything else is unknown.
The First Amendment protects individuals from answering metaphysical, cultural, and political questions about identity and other issues. The First Amendment also protects the free exercise of religion. Different faith traditions, including atheism, offer different answers to metaphysical questions such as the nature of existence, the meaning of life, relationship to God, revelation, and morality, including questions about gender.
Under the Constitution, a state cannot, on its own initiative or at the request of an individual, deny an individual’s right to defend themselves, or not to defend themselves, by words or symbols, and by affirming this, a Colorado court could save taxpayers another trip to Washington, DC.
Kristakafer is a weekly columnist for The Denver Post. Follow her on Twitter: @kristakafer.
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