Speech or Conduct: The Free Speech Claims of Wedding Vendors

Abstract

As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny?

Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.

Keywords: Speech, Religion, First Amendment, expressive conduct, symbolic conduct, exemptions, bakers, wedding cakes, photographers, wedding photographs, Elane Photography, Masterpiece, Masterpiece Cakeshop, Spence test