Why the First Amendment Protects the Right Not to Bake a Cake

Today the Supreme Court will hear the case of Jack Philips, the Colorado baker who declined to provide a cake for a gay couple’s wedding reception. While some have argued that, even if the state of Colorado overreached by charging Philips with unlawful discrimination, baking a cake is not considered speech for First Amendment purposes, Robert P. George and Sherif Gergis disagree:

Colorado’s order that [Philips] create same-sex wedding cakes (or quit making any cakes at all) would force him to create expressive products carrying a message he rejects. That’s unconstitutional.

Some fear a slippery slope, arguing that anything can be expressive. What if someone refused to rent out folding chairs for the reception? Or what about restaurant owners who exclude blacks because they think God wills segregation? If we exempt Mr. Phillips, won’t we have to exempt these people from anti-discrimination law? . . . [But] unlike folding chairs or restaurant service, custom wedding cakes are full-fledged speech under the First Amendment. Creating them cannot be conveniently classified as “conduct, not expression” to rationalize state coercion.

After all, the aesthetic purpose of wedding cakes—combined with the range and complexity of their possible designs—makes them just as capable of bearing expressive content as other artistic speech. Mr. Phillips’s cakes are admired precisely for their aesthetic qualities, which reflect his ideas and sensibilities. A plaster sculpture of the same size and look would without question be protected. That wedding cakes are edible is utterly beside the point. Their main purpose isn’t to sate hunger or even please the palate; it is aesthetic and expressive. They figure at receptions as a centerpiece and then part of the live program, much like a prop in a play. And no one denies that forcing artists to design props for plays promoting a state-imposed message would be unconstitutional. . . .

At some level, Colorado itself gets it. Three times the state has declined to force pro-gay bakers to provide a Christian patron with a cake they could not in conscience create given their own convictions on sexuality and marriage. Colorado was right to recognize their First Amendment right against compelled speech. It’s wrong to deny Jack Phillips that same right.

Read more at New York Times

More about: American law, Freedom of Speech, Gay marriage, Politics & Current Affairs, Supreme Court

It’s Time for Haredi Jews to Become Part of Israel’s Story

Unless the Supreme Court grants an extension from a recent ruling, on Monday the Israeli government will be required to withhold state funds from all yeshivas whose students don’t enlist in the IDF. The issue of draft exemptions for Haredim was already becoming more contentious than ever last year; it grew even more urgent after the beginning of the war, as the army for the first time in decades found itself suffering from a manpower crunch. Yehoshua Pfeffer, a haredi rabbi and writer, argues that haredi opposition to army service has become entirely disconnected from its original rationale:

The old imperative of “those outside of full-time Torah study must go to the army” was all but forgotten. . . . The fact that we do not enlist, all of us, regardless of how deeply we might be immersed in the sea of Torah, brings the wrath of Israeli society upon us, gives a bad name to all of haredi society, and desecrates the Name of Heaven. It might still bring harsh decrees upon the yeshiva world. It is time for us to engage in damage limitation.

In Pfeffer’s analysis, today’s haredi leaders, by declaring that they will fight the draft tooth and nail, are violating the explicit teachings of the very rabbis who created and supported the exemptions. He finds the current attempts by haredi publications to justify the status quo not only unconvincing but insincere. At the heart of the matter, according to Pfeffer, is a lack of haredi identification with Israel as a whole, a lack of feeling that the Israeli story is also the haredi story:

Today, it is high time we changed our tune. The new response to the demand for enlistment needs to state, first and foremost to ourselves, that this is our story. On the one hand, it is crucial to maintain and even strengthen our isolation from secular values and culture. . . . On the other hand, this cultural isolationism must not create alienation from our shared story with our fellow brethren living in the Holy Land. Participation in the army is one crucial element of this belonging.

Read more at Tzarich Iyun

More about: Haredim, IDF, Israeli society