Laws banning discrimination on the basis of sexual orientation — like laws banning discrimination on the grounds of race, sex, and other significant statuses — are a moral and social good, properly expressing the intrinsic and radical equality of every human person.
Marriage, however, by law and by custom, is not a statement about an individual human person. And it is not a just a private contract between two individuals. It is rather a legal and social status accorded to a pair of persons by the state, which conveys by law (and therefore in every case) a variety of affirmative endorsements of the union. In the landmark marriage case Maynard v. Hill cited often in Obergefell, the Supreme Court stated:
[W]hile marriage is often termed by text writers and in decisions of courts as a civil contract, generally to indicate that it must be founded upon the agreement of the parties, and does not require any religious ceremony for its solemnization, it is something more than a mere contract. The consent of the parties is, of course, essential to its existence, but when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. . . . The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.
As a result of this meaning of marriage in U.S. law, forced participation in a wedding celebration — by providing the cake that is undoubtedly a high point and symbol of the marriage — materially facilitates and communicates an affirmation of what this union is by law and custom.
Citing Maynard and many of its other marriage opinions, the Obergefell Court resoundingly affirmed that by law and public regard, marriage is: a privileged place for sexual relations; associated with the right to rear children; and the “keystone of the Nation’s social order.” Obergefell added that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family” and that the state therefore offers “over a thousand” benefits to married couples in order to “protect and nourish the union.”
Obergefell elaborated further on the intrinsic public connotations of marriage between same-sex pairs, above and beyond its usual connotations. The Court stated that same-sex marriage serves as a means by which homosexual persons “define and express their identity” to onlookers. It also expresses sameness between same- and opposite-sex pairs, which is a claim that there is no difference between procreative and nonprocreative unions, or between households facilitating children’s knowing and being reared by their biological parents, and households in which — in every case — children will be separated from their biological mother or father, or both.
As I have outlined before, Obergefell is only the most recent in a long line of Supreme Court opinions to hold that marriage is more than a private contract between two persons; it is rather always also a “status” bestowed by the state and automatically connected with the above expressions of approval. As a consequence, a marriage celebration is intrinsically expressive conduct, whether or not the affianced participants understand it as such. And the persons constructing the event, including the baker, are assisting the promotion of all of the above affirmations about the meaning of this particular union.
There is little doubt that same-sex pairs pursued state-recognized marriage precisely because of its communicative nature. The petitioners began their Supreme Court brief in Obergefell by stating that they were “seeking a cherished status” which would “confer[]” “dignity and status.” Making the same point from the negative position, they asserted that the failure to receive marriage recognition would communicate “hurt[]” and “indignity[].”
It has never been enough, in the view of the Supreme Court’s free speech doctrine, to assure citizens that their compelled expression could later be repudiated, or that onlookers would likely understand that they didn’t really mean it and were simply acting at the state’s behest. Thus, in West Virginia State Board of Education v. Barnette, the Court refused to tell the Jehovah’s Witness schoolchildren to salute the flag and recite the pledge despite the argument that everyone would simply know that they were under compulsion. And, in Pacific Gas and Electric Co. v. Public Utilities Commission, the Court refused to require a public utility to include a third party’s opinion in its billing envelope, even if it could assert its disagreement with the other’s message. The Court stated that this would open to the door to the government “requir[ing] speakers to affirm in one breath that which they deny in the next.”
To require the designer of one of the symbolic high points of a wedding celebration to participate in a same-sex wedding violating his religious tradition is to claim that the celebration communicates nothing — that a wedding is a private transaction between the engaged parties, and between that couple and the individuals they hire to celebrate their union. But this flies in the face of the fact that as a matter of law “marriage” is a state-recognized status, with multiple public meanings articulated by the Supreme Court in Obergefell and many prior cases. It also contradicts same-sex couples’ insistence in their Obergefell pleadings that they sought marriage in order to obtain a “status” which is public and expressive.