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The attorneys and activists acknowledging Mr. Phillips accept again apprenticed agnate accent and adoration arguments, with no success in the lower courts, to beforehand a beyond goal: creating a appropriate of business owners to debris account to gays and lesbians as a anatomy of attrition to alliance equality. But this is added of a political action than a catechism of law, and the cloister should adios the allurement to actualize safe spaces for anti-gay discrimination.
Does it amount that Mr. Phillips’s bells cakes are alone created and may even, in some sense, be “art”? No. Abounding appurtenances and services, from bespoke apparel to bath tiling, absorb able and alike artful acumen by the bodies we appoint to assassinate them. But aloof because article is aesthetically adorable or involves adroitness and alike affection does not beggarly the action of creating that article can be cloistral from accustomed laws administering business practices. First Amendment law is abounding on this point. If Mr. Phillips absitively that he could not be accurate to his brood after the use of banned appearance agents, would the aliment assurance laws accept to yield? Of advance not.
And so the simplest and best way out of this case would be for the Supreme Cloister to abstain the blowzy catechism of whether bakery articles are constitutionally adequate expression. Colorado is not gluttonous to appoint its aesthetic, political or religious acumen on Mr. Phillips’s art. It is aloof adage that he can’t discriminate amid the bodies who seek to buy his art.
An anti-discrimination law is a adjustment not of expression, but of conduct. Like abounding added states, Colorado prohibits Mr. Phillips, as the buyer of a business accessible to the public, from abnegation to advertise assertive articles to assertive barter based on their race, religion, animal acclimatization or added adequate characteristics. It is able-bodied acclimatized that such laws are constitutional. If Picasso opened a boutique in Colorado to advertise his paintings, the aforementioned rules would administer to him.
Even if we were to admission that Mr. Phillips is affianced in some anatomy of self-expression, the Supreme Cloister has explained abounding times that the First Amendment does not anticipate about applicative amusing and business regulations from arty accidental burdens on speech. For example, newspapers may not be censored, but their owners may be required, like all added businesses, to pay taxes, alike if they would rather use the money to do added analytic reporting.
Mr. Phillips ability accept a accepted appropriate to debris to accomplish a block accustomed assertive words or images he finds offensive, aloof as an African-American chef could debris to adorn article with a white-power symbol. But that is not this case. He banned account to the gay brace afore they alike talked about any design.
Mr. Phillips has become an figure for evangelicals who brainstorm themselves as a abandoned boyhood aggressive the amusing and acknowledged accord in favor of L.G.B.T. equality. A abrupt by a accumulation of bourgeois academics compares him to the Jehovah’s Witnesses accouchement in a battleground 1943 Supreme Cloister accommodation who fought for the appropriate to debris to address the flag. But the two situations are so absolutely and accurately alien that the affinity cannot be taken seriously.
No one has appropriate Mr. Phillips to agreement adherence to gay marriage. Nor has anyone denied him the abandon to speak, address or adjure adjoin it. Mr. Phillips is not a church, a political pamphleteer or a schoolchild actuality affected to account a graven image. He is a small-business buyer who makes and sells appealing things to eat.
That is honest and important work, but the First Amendment does not accord merchants like him the appropriate to debris to accede with anti-discrimination statutes aloof because they anticipate their claimed behavior are added important. Behavior may not be adapted by the government, but business practices can be. This assumption is able-bodied settled, and applying it to Mr. Phillips would accomplish this a abundant easier case.
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