Tom Berg, professor at the University of St. Thomas School of Law, recently spoke with World News Group for a story about whether making custom cakes for same-sex weddings violates free speech protections.
From the story:
A Bakersfield, California, baker vowed to press on after a state appeals court panel Tuesday rejected her claim that the First Amendment protects her right not to design a custom cake for a same-sex wedding.
Tastries Bakery owner Cathy Miller describes all of her wedding cakes as custom-designed. But in a 74-page opinion, judges concluded that her refusal to provide a “pre-designed, multipurpose white cake” was not protected expression under the Constitution’s free speech guarantee. ...
Thomas Berg, a constitutional law professor at the University of St. Thomas School of Law in Minneapolis, said the result in the case was not surprising. “Unlike Lorie Smith’s customized websites or Jack Phillips cake designs, courts will be reluctant to find that an off-the-shelf product expresses the baker’s message,” he said. But he said the court’s treatment of Miller’s free exercise of religion claim shows the problem with the much-criticized 1990 precedent set by Employment Division v. Smith, which states that laws that are neutral and generally applicable may still penalize religious conduct.
