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

 

The Purim Libel Returns, This Time from the Pens of Jews

March 14 2025

In 1946, Julius Streicher, a high-ranking SS-officer and a chief Nazi propagandist, was sentenced to death at Nuremberg. Just before he was executed, he called out “Heil Hitler!” and the odd phrase “Purimfest, 1946!” It seems the his hanging alongside that of his fellow convicts put him in mind of the hanging of Haman and his ten sons described in the book of Esther. As Emmanuel Bloch and Zvi Ron wrote in 2022:

Julius Streicher, . . . founder and editor-in-chief of the weekly German newspaper Der Stürmer (“The Stormer”), featured a lengthy report on March 1934: “The Night of the Murder: The Secret of the Jewish Holiday of Purim is Unveiled.” On the day after Kristallnacht (November 10, 1938), Streicher gave a speech to more than 100,000 people in Nuremberg in which he justified the violence against the Jews with the claim that the Jews had murdered 75,000 Persians in one night, and that the Germans would have the same fate if the Jews had been able to accomplish their plan to institute a new murderous “Purim” in Germany.

In 1940, the best-known Nazi anti-Jewish propaganda film, Der Ewige Jude (“The Eternal Jew”), took up the same theme. Hitler even identified himself with the villains of the Esther story in a radio broadcast speech on January 30, 1944, where he stated that if the Nazis were defeated, the Jews “could celebrate the destruction of Europe in a second triumphant Purim festival.”

As we’ll see below, Jews really did celebrate the Nazi defeat on a subsequent Purim, although it was far from a joyous one. But the Nazis weren’t the first ones to see in the story of Esther—in which, to prevent their extermination, the Jews get permission from the king to slay those who would have them killed—an archetypal tale of Jewish vengefulness and bloodlust. Martin Luther, an anti-Semite himself, was so disturbed by the book that he wished he could remove it from the Bible altogether, although he decided he had no authority to do so.

More recently, a few Jews have taken up a similar argument, seeing in the Purim story, and the figure of 75,000 enemies slain by Persian Jews, a tale of the evils of vengeance, and tying it directly to what they imagine is the cruelty and vengefulness of Israel’s war against Hamas. The implication is that what’s wrong with Israel is something that’s wrong with Judaism itself. Jonathan Tobin comments on three such articles:

This group is right in one sense. In much the same way as the Jews of ancient Persia, Israelis have answered Hamas’s attempt at Jewish genocide with a counterattack aimed at eradicating the terrorists. The Palestinian invasion of southern Israel on Oct. 7 was a trailer for what they wished to do to the rest of Israel. Thanks to the courage of those who fought back, they failed in that attempt, even though 1,200 men, women and children were murdered, and 250 were kidnapped and dragged back into captivity in Gaza.

Those Jews who have fetishized the powerlessness that led to 2,000 years of Jewish suffering and persecution don’t merely smear Israel. They reject the whole concept of Jews choosing not to be victims and instead take control of their destiny.

Read more at JNS

More about: Anti-Semitism, Anti-Zionism, Book of Esther, Nazi Germany, Purim