Emory Law Journal


Is baking a cake for a same-sex wedding or photographing the bride-and-bride or groom-and-groom ¿speech¿ triggering free speech scrutiny? Or is providing wedding services better viewed as conduct that does not implicate the Free Speech Clause? In other words, do religious bakers and photographers have a compelled speech claim if the government forces them to render services pursuant to public accommodations law? For the speech claims, whether baking a cake or taking a picture counts as speech is pivotal. After all, the Free Speech Clause prohibits the ¿abridging of freedom of speech.¿ The question for this Article is not whether public accommodation laws violate the Free Speech Clause but whether they even trigger free speech review. This Article concludes that the bakers do not have a free speech claim, and the photographers probably do not either.