Re: Indiana's 'No Gay Wedding' Pizzeria Has Closed
Are you a public accommodation? Because then you would have to, that is the law.
That is not necessarily true of all things a law may define as public accommodations. You seem to have the notion that state public accommodations laws are absolute and unquestionable. They are not. The Constitution is a law, too, and it trumps all others in this country.
The Supreme Court has twice held, on First Amendment grounds, that state public accommodations laws which prohibited discrimination on the basis of sexual orientation were unconstitutional as applied. In Hurley, in 1995, it held a Massachusetts law violated the freedom of speech by requiring the organizers of a St. Patrick's Day parade to include an Irish-American homosexual group. And in Dale, in 2000, the Court held a New Jersey law violated the freedom of expressive association by prohibiting a Boy Scouts council from terminating the membership of an assistant scoutmaster when it learned he was a homosexual.
Even where the pubic accommodation is a more orthodox one than those in Hurley or Dale, state laws that prohibit them from discriminating on the basis of sexual orientation may in some cases be government-compelled speech--the basis for striking down the law in Hurley. Where a person who disapproves of homosexuality is compelled to endorse or celebrate it, even symbolically, the law which compels that may violate the freedom of speech. Words or symbols celebrating same-sex marriage in the decoration of a wedding cake are expressive speech. So are artistically arranged photographs meant to celebrate that marriage. And a person who has to let his wedding chapel be used for a same-sex marriage is being compelled to endorse it.
In his concurring opinion in Pruneyard Shopping Center, one of the Court's First Amendment compelled-speech decisions, Justice Powell said this:
A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable.
If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center . . . the property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, cannot restore his right to refrain from speaking at all.
A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant . . . A minority-owned business confronted with leaflet distributors from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak . . . .
The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property . . . the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner . . . .
