Professor Robert George weighs in on the pending SCOTUS deliberation on the case of the Colorado baker’s right to decline baking a cake for a gay wedding on the grounds that he, as per his Biblical viewpoint, hates gays.
It’s wasting time to drive this into the Constitutional weeds. The whole question would be decided fast if the baker and Professor George took their animus to its logical outcome, as does Pastor Steven Anderson of Faithful Word Baptist Church in Tempe. The Pastor preaches that the way to an gay free world is explicitly stated in the Bible: kill gays. Problem solved.
Professor George doesn’t have the luxury of such candor so he invents a neat new legal strategy. This baker can decide if something he makes is an “Expressive Product”. If it is, it’s speech. It’s protected. No one has a right to make him say something he doesn’t want to say.
The solution here for this baker is two-part: one, to display his wares in separate cases, one for "Expressive Products" and the other for mere cakes, pies, etc.; and two, for him to ask all of his customers about who they are, what they value, how they do or don't worship, etc. The baker can then move the goods from case to case, and if, say, someone he hates wants a cake, then that item gets moved to the "Expressive Products" case so that he can instantly elevate it from a cupcake to a brave stout defense of his Constitutional rights, and gratify his need to tell people not only that he hates them, but that he is defending the rights of all Americans when he bravely and stoutly tell them that he hates them, as, the Professor might argue, the Founders surely intended.
The “Expressive Product” notion gets complicated when it presumes, as it must, that the baker is effectively inviting himself to a wedding where his cake is part of the celebration. If this is his Expressive Product, can he also compel the buyers to say he made it on a placard or in the program? Can he copyright it and make sure than no one at the wedding uses his design or requests it from another baker? Does he have the right to ask them not to slice his Expressive Product up, and can he ask them not to shove his maimed “Expressive Product” into each other’s faces for funny wedding photos? Artists by definition defend their “Expressive Products” as passionately as they create them, so can’t a person in any profession lift his work to the status of “Expressive Product” and litigate against someone altering their architecture, or rewriting their radio commercial, or—ever, anywhere, in perpetuity--playing their music on an accordion? It’s a particularly delicate question when the status of “Expressive Product” is applied to food because a wedding cake is temporary, even moreso than the flowers and the dancing and pretty likely the marriage itself in the first place; so no matter how expressive the product is, in a day or so, all that’s left of it is in the trash or the sewer. Doesn’t the customer for an “Expressive Product” assume the role of responsible curator for a work of art, and isn’t there some moral obligation on the recipient’s part to respect it? If the baker frosted the Mona Lisa on a little girl’s cake, does that little girl have a right to eat the art?
George is against permitting gays the dignity of equality in the marriage, which is to say that he is against gays and that he, at the foundation, shares Pastor Anderson’s sentiments if not pastor Anderson’s candor. Professor George is a reliable pitcher for Conservative religious spin applied to civil law, but this “Expressive Product” idea is a greasy spitball, and the Court needs to throw it out of the game. Poll taxes and voting tests were such brave stout expressions of free speech. They served not only to defend the First Amendment as per Professor George's standards, but also to tell people that they were bad and wrong in the first place to expect dignity and the equality of their votes in the elections and their dollars in the markets. We call them “bigots” today, but the Dr. George would have us know them as brave stout people making brave stout defenses of their right to call their racist towns or segregated lunch counters “expressive products”--to make all reality such an expressive product, if they wanted to, so they could cloak themselves in Constitutional virtue and hate for fun. The Founders would be embarrassed.