1st Amendment and Free Speech/Refusal of Service


In some states it is illegal for businesses to deny service based on the sexual orientation of the customer.  If an individual went to a print shop and ordered a banner congratulating a gay couple on the their marriage, could the printer legally refuse to do so citing First Amendment issues (being asked to print something that, based on religious reasons, he does not wish to "say").

Would such a claim protect someone from refusing to sell a wedding cake to a gay couple (being asked to print something on the cake that, based on religious reasons, he does not wish to "say").  Even if the cake had no writing, could the baker decline to make the cake because the cake itself is the message?

In either case, the business owner would serve a LGBT person for general things.  The issue is "having to" express support for a same sex wedding.

(This subject is being debated among several acquaintances.  I just wanted to make it clear I don't agree with this denial of service and I'm not trying to find a way to circumvent the law to discriminate).

Hi Savannah,

It is an interesting question.  I suppose the answer would depend on exactly how the State's non-discrimination statute is written and interpreted.

Under your scenario, the merchant is not directly discriminating against the customer.  The printer or cake maker would be happy to sell the homosexual customer a banner or cake that said simply "happy birthday" or some other neutral message.  But the merchant is refusing to provide service based on the content of the message, not the sexual preferences of the customer.  Under a direct reading of most anti-discrimination statutes, that would not be discrimination.

That said, many courts might find that the refusal does constitute discrimination.  There is currently a case in Kentucky where a local Human Rights Commission found that a Christian owned T-shirt business violated an anti-gay ordinance when it refused to make pro-homosexual T-shirts for a gay rights organization.  You can read more about it here:


The case is still in litigation.  It will be interesting to see the final result.

I would be concerned if they Commission's finding of discrimination is upheld.  By the Commission's logic, a Jewish printer would be required to print t-shirts for a radical Islamic group that called for "Death to Israel" because doing otherwise would be Religious discrimination.  A female printer who refuses to print a message that says women should be "barefoot, pregnant, and in the home" might find herself the target of a sex discrimination investigation.  A minority printer who rejects an Aryan nation message of "white power" might be found guilty of race discrimination.

As I said, I have seen little precedent in this area.  I think if a court was intellectually honest, it would have to separate message discrimination from customer discrimination.  However, many people, including possibly judges, might find that the refusal to print the message is only based on a discriminatory animus against the person and therefore illegal.

You also raise the issue of First Amendment.  Again, it is unclear how courts might rule here.  It would seem that compelling a person to say or print something they find abhorrent would be illegal.  However, harassment law often limits speech in the workplace that deals with issues on which a person should normally have the right to speak on within the First Amendment.  In many cases, we see courts upholding the harassment laws in such cases.

Sorry I cannot give you a definitive answer, but hope this helps.

- Mike  

1st Amendment and Free Speech

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Michael Troy


I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.


As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Former Attorney for Center for Individual Rights.

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J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

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