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Symposium: As a matter of marriage law, wedding cake is expressive conduct

Helen Alvare is a professor of law at Antonin Scalia Law School, George Mason University.

Many advocates have written about why a wedding cake is itself constitutionally protected expression. This proposition is clearly true based upon common knowledge about the processes involved in wedding cake design and decoration. Less has been written, however, about how the cake might be “expressive conduct” under the standards of Texas v. Johnson, although the brief for the petitioners in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission refers to the cake as the “centerpiece” of an “inherently celebratory event.”

There is another, more obvious way, however, to understand the wedding cake as expressive conduct: Wedding cakes in every case celebrate an event and a union that are by law and not merely by custom, expressive. This is because long-established marriage law, adopted in every state, explicitly endorsed by the Supreme Court, and resoundingly affirmed in Obergefell v. Hodges, holds that marriage is never just a private contract between two people, but always also a “status” – bestowed and contented by the state, and by the interaction of law with social norms and meanings.

According to this law, marital “status” is the legal and social recognition that the marital union is specially favored because it forms the “keystone of the social order,” is the most favorable and stable place for sexual expression and childrearing, and is a public sign of fidelity, permanence, maturity and social responsibility. It is because state-recognized marriage legally possesses and communicates such a status that over a thousand state benefits flow to it, and myriad obligations attach to it as well.

Advocates for same-sex marriage relied heavily upon the fact that marriage is a public, expressive status in arguing for a constitutionally recognized right. Obergefell accepted their argument entirely, and added that the celebration and existence of state-recognized same-sex marriage automatically communicates additional legal and social meanings. For example, Justice Anthony Kennedy wrote that state-sanctioned same-sex marriage communicates the perfect equality of same- and opposite-sex married unions – that is, between procreative and nonprocreative intimate pairs, and between households in which children know their natural parents and households in which they will inevitably be separated from their natural mother or father or both.

By law, from the moment a couple enters into a marriage contract until the end of the union, marital status attaches certain legal rights and obligations to a couple and communicates myriad social meanings (although, within limits, the couple can alter various property or financial rights via, for example, a prenuptial agreement.). Consequently, to force a baker to make the cake that always celebrates these rights, obligations and messages is to force expression contrary to his First Amendment rights.

Below, I treat briefly the legal tradition of marriage as a public status, same-sex marriage advocates’ and the Supreme Court’s reliance on this tradition in Obergefell, and the intersection of marital status with the right of free expression.

Perhaps the most famous articulation of marriage as a social status is the Supreme Court’s Maynard v. Hill decision, relied upon heavily in Obergefell. The Maynard court noted that every state attaches myriad “obligations and liabilities” to the marriage contract because the public has a “deep[] interest[]” in marriage. This is because marriage is the “foundation of the family and of society, without which there would be neither civilization nor progress,” the relationship that is “the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”

States’ valorization of marriage can be understood more clearly by comparing the benefits and positive connotations associated with marriage to the situations of cohabitation, dating and nonmarital sex. As the Massachusetts Supreme Judicial Court opined in Goodridge v. Dept. of Public Health, marriage is legally and socially associated with responsible sexual expression and childrearing, and the capacity for sacrifice, fidelity and permanence. Marriage is also the predicate for over a thousand government-conferred benefits. Cohabitation, dating and nonmarital sexual partnerships, on the other hand, confer almost no such benefits and are not legally or socially linked with any of these advantages. This is why same-sex marriage advocates were not satisfied to remain at the level of cohabitants or unmarried intimate partners.

Same-sex-couple plaintiffs relied heavily and repeatedly upon the intrinsic legal and social meanings of marriage in their bid to obtain a constitutional right to same-sex marriage. They opened their brief before the Supreme Court in Obergefell with the statement that the very purpose of same-sex marriage is to “seek[] a cherished status.” They asserted that legal same-sex marriage “confers” “dignity and status,” while the refusal of legal marriage communicates “indignit[y].” They asserted that legal marriage has communicative powers from the time it is contracted, throughout the everyday lives of the parties and their children, and even after the death of a spouse, lamenting the “hurt[]” caused by Ohio’s failure to recognize a same-sex spouse on a death certificate.

Obergefell fully embraced the notion of marriage as an intrinsically expressive status, adding that same-sex marriage conveys additional meanings. Justice Anthony Kennedy’s opinion affirmed that marriage is understood as a privileged place for intimate association, is associated with the right to bring up children, and is the “keystone of the social order” as well as the “foundation of government.” He added that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice and family” and is thus the favored “status for over a thousand provisions of federal law,” which offer “symbolic recognition and material benefits to protect and nourish the union.”

Justice Kennedy’s opinion further recognized that same-sex marriage communicates additional meanings. It serves as a means by which gay and lesbian persons “define and express their identity” to the larger society. And it expresses that there is no difference between same- and opposite-sex unions, including with respect to parenting. Because he understood marital status as inherently communicative, Kennedy added that a refusal to grant it to same-sex couples communicates stigma and would “disparage [same-sex couples’] choices and diminish their personhood.”

Thus, whether or not the vendors or even the affianced couple participating in a marriage ceremony agree or disagree with the messages conveyed by marital status, a state-recognized marriage communicates those messages. And a wedding cake in every case celebrates what the state-licensed marriage expresses. It is expressive conduct.

But the Constitution forbids the state from compelling a citizen to endorse what he or she does not believe, by “word or act.” As the Supreme Court held in West Virginia State Board of Education v. Barnette, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” This principle has been upheld in cases (such as Pacific Gas and Electric Co. v. Public Utilities Commission and Wooley v. Maynard) in which the complainant was not being asked personally to endorse the expression at issue. And, as argued in the amicus brief I have joined with 33 other legal scholars, it is not enough to tell the unwilling “confessor” that everyone will understand they were coerced, or that they can express their disagreement in some other fashion. This would be the equivalent of telling the Jehovah’s Witness school children in Barnette that they should “[j]ust salute the flag and recite the Pledge – everybody will know that you were forced to do it, and that you don’t really mean it – and then explain to your friends and classmates what your real beliefs are.”

The Supreme Court has robustly protected citizens’ rights respecting the freedom not to be associated with another’s message. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, the positions of the parties were reversed as compared with Masterpiece Cakeshop, but the principle set forth in Hurley is equally applicable here. In Hurley, the speaker – the parade – did not wish to be associated with the message of a group wanting to communicate “gay pride.” The speaker was permitted to exclude the group. In Masterpiece Cakeshop, the speaker — the baker – does not wish to be associated with – in fact, to celebrate – the inherently expressive event of a state-recognized same-sex marriage. He must be permitted to withhold participation. Hurley’s holding applies equally to both situations: “[A] speaker has the autonomy to choose the content of his own message.”

The Supreme Court should appreciate the irony of the same-sex couple’s position in Masterpiece Cakeshop. The plaintiffs in Obergefell rode to the establishment of a constitutional right to same-sex marriage on the back of the idea that “marriage” is an intrinsically and loudly expressive status in American law and society. That to have this status expresses as nothing else can the full equality and dignity of same-sex individuals and couples, and is a resounding statement that there is no difference between procreative and nonprocreative unions, or households facilitating children’s linkage with their natural parents and those inevitably severing it. That to be denied marital status communicates the worst kind of social stigma, indignity and scorn.

In this and similar cases against vendors’ rights of free expression, however, same-sex couples must repudiate this entire line of argument, and insist instead that a same-sex marriage ceremony and marriage have no expressive function whatsoever. The Supreme Court should not permit them to have their cake and eat it too.

Recommended Citation: Helen Alvaré, Symposium: As a matter of marriage law, wedding cake is expressive conduct, SCOTUSblog (Sep. 13, 2017, 2:24 PM),