The Cost of Free Speech: Resolving the Wedding Vendor Divide

By Victoria Cappucci

As marriage equality becomes fully realized in the United States, business proprietors increasingly refuse to service same-sex weddings on religious grounds. However, at the same time, state laws protect same-sex couples from discrimination in places open to the public. Such competing values have resulted in a line of “wedding vendor” cases. As the cases continue to proliferate, this Note examines when, and to what extent, the otherwise equally important values of free expression and equality should trump one another.

This Note analyzes First Amendment compelled speech claims within the line of wedding vendor cases: specifically, whether wedding goods and services are covered by the Free Speech Clause and, if so, what level of scrutiny a court should employ to determine the constitutionality of an antidiscrimination law. This Note demonstrates that patchiness within the compelled speech doctrine and a lack of clear U.S. Supreme Court guidance after Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission have resulted in a “split” approach to resolving these issues. This Note ultimately argues that if the vendors’ goods and services rise to the level of sufficiently expressive conduct, then a court should apply intermediate scrutiny to an antidiscrimination law incidentally burdening that conduct. In the alternative, this Note provides a legislative solution to mitigate the tension between religious liberty and equality.