The Oregon Court of Appeals decided unanimously this week to uphold a $135,000 fine against the owners of a local cake shop who declined to use their artistic skills to create a custom cake for a same-sex wedding. Sound familiar? It’s a similar case to Masterpiece Bakeshop v. Colorado Civil Rights Commission, argued before the Supreme Court in early December. In that case, baker Jack Phillips argues the government cannot compel speech that is against an individual’s sincerely held belief.
In a nation whose people, politics, and especially religious beliefs are sharply divided, the Masterpiece decision will have critical effects on the preservation of the right to disagree, free speech, and freedom of belief in America. In the Oregon case, the baker owners Aaron and Melissa Klein were forced to pay “emotional distress” damages under Oregon law, which essentially means that if a customer feels offended on a basis protected by anti-discrimination law, he can successfully sue for damages.
What is most alarming about the Oregon court’s opinion is the rejection of the Klein’s argument that their custom designs rise to the level of artistic expression that is a clear message intended by the author. Rather, the court irrationally held that it is the burden of the speaker to show that his or her message is perceived correctly by others.
“Although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominately as ‘expression’ rather than as food,” the opinion held.
This is the court’s sleight of hand and end run around the First Amendment. Free speech and freedom of expression are fundamental rights held by the speaker. The Constitution does not protect a hearer or perceiver of speech from his or her subjective offense, misperception, or—as the lesbian couple alleged in the Oregon case—emotional and mental distress.
If Meaning Is Up to Listeners, There’s No Speech
Meaning and expression have always been and must be inherently vested with the author or speaker, otherwise they become literally meaningless. If meaning is left open to the subjective whim of the perceiver, communication itself cannot happen.
You may disagree with the content of this article, but the words and phrases that I as the author choose and intend to convey are not open for subjective determination. Any mistake of communication, whether through my poor word choice or your poor understanding, do not negate the original intent of what I actually intended.
This kind of rationale from a court of law is the hallmark of activism. Courts are vested with the sole responsibility of interpreting meaning objectively and consistently applying the meaning of the law to a given case as fairly and unbiased as possible by humans. This is also why we have higher levels of appeals with wider panels of jurists. It’s not so parties hope they get a majority court sympathetic to their political position for an activist win.
We have forgotten why authorial intent matters to protecting our fundamental freedoms and to constitutional analysis. Originalism is the doctrine of interpreting any communication with five chief principles, including our Constitution as a written document with authors that expressed their meaning in written form, as I outline in my book “The Legal Basis for a Moral Constitution.” Here are those five principles of originalist interpretation.
Principle 1: Authorial Meaning
Any communication has an author: the person (or persons) who express a message. The author chooses the medium and method of conveying his message. In written speech, the author houses particular words to communicate a specific meaning. Similarly, a custom design from an artist (whether on a cake or canvas) conveys the author’s intent for the message.
The key to understanding the meaning of the message is not in the subjective perception of any individual viewer, but rather to realize that the author establishes the meaning. Communication can only occur when meaning is inherently vested with the originator of the message. A perceiver may disagree with the author’s message, but the perceiver is not free to substitute his or her own meaning into the message then claim this is what the message intends.
The most common form of miscommunication happens when the perceiver misunderstands, incorrectly perceives, or deliberately substitutes his or her own intent for the intent of the author’s. Consider how ridiculous communication would become if you could not say anything to loved ones without giving them the power to interpret it however they want, regardless of what you meant through your own choice of messaging. If your loved one can subjectively choose to interpret the words “I love you” as “I hate you,” then what is the point of attempting communication?
Communication inherently requires understanding of the author’s intended meaning, and that meaning must logically remain with the author.
Principle 2: Exclusive Original Meaning
For an expression to have any genuine meaning, it must have one original meaning. If the text could have multiple meanings, then actual communication is entirely lost, and we would say the expression is “vague” or over-broad. This original meaning therefore logically excludes any other meanings.
Meaning is not only vested exclusively with the author, but is also not relative, dependent on the perceiver. Original intent does not change with the identity of the perceiver. Authorial intent does not change for the perceiver who says, That’s not what I think it means or This expression doesn’t mean anything to me.
Meaning is exclusive and vested with the author, regardless of perceiver’s success at comprehending the intended meaning.
Principle 3: Objective, Concrete, and Binding Meaning
Legal scholars often refer to this concept as the “plain meaning” of the text. Unless otherwise defined as a specific, not readily inferred meaning (such as a poem or coded message), the words mean what they appear to mean to a reasonable person.
Often, perceivers try to infer or ascribe a symbolic or subjective meaning to the message and read into it (or out of it) something entirely different than what the author intended. This is how courts take various words and phrases from the Constitution and other statutes, law, and even other opinions to squeeze out of the text the legal outcome they desire. This is called activism.
Principle 4: Contextual Meaning
Messages are not conveyed in a vacuum. Communication always has context: identity of the author, time and place of communication, a medium, and other factors that bear upon the message.
Context is said to be “the circumstances that form the setting for an event, statement, or idea…” Context provides data points to navigate the message and pinpoint its precise meaning. Cakes intended by the creator to convey a message of celebrating a union always have a context—a wedding. This is obvious when not hyper-politicized and rightly leaving the meaning vested with the author.
Principle 5: Meaning through Consideration of the Whole
The final principle establishes that the perceiver must take the meaning out of the whole expression, including context, and use all five principles in tandem.
Without Originalism, We Get Activist Judges
These principles have been entirely lost on a nation concerned with political pivoting and determined to substitute one’s own perception with authorial intent and claim instead whatever one wishes the author intended. Judicial activists do this every day with the Constitution, choosing the outcome of cases based on political agendas rather than the rule of law. When conservative originalists discuss the “original intent” of the Founders, this does not mean we are searching hopelessly for what the Founders may or may not have thought about a particular political policy, such as today’s tech regulations.
What constitutional originalists mean is that we must leave the interpretation of the words and phrases of the Constitution to the intent of the Founders. They chose specific words and phrases to convey only specific, limited powers to the three branches of the federal government and to the states. These powers are quite straightforward. How government exercises its legitimate limited authority has always been a political question, outside the scope of judicial review.
What the government may do is quite different than what it should do. The former is non-partisan and objective; the latter entirely political and allows for reasonable disagreement on policy. This is why we vote and have an element of democracy in our constitution republic. The Founders understood that we the people must retain the authority to choose who will exercise governmental powers and decide political questions in the legislative and executive branches.
What happened in the Oregon case—and I pray will not happen in the Masterpiece opinion —is the judicial branch substituting its own judgment on what the government and individuals should do, rather than exercising judicial restraint and limiting their opinion to what the government and individuals may do.
Courts Are Making Themselves Partisan
Certainly a baker may decline to use his or her artistic skills and talents to express a message that violates his or her sincerely held belief or conscience, per our rule of law. This is not an agenda-based outcome, but an objective constitutional rules-based outcome.
This lack of principle is the core of the constitutional crisis in America today and why we see a varied opinion from courts based on the political considerations from individual justices. Oregon is progressive and liberal, and its courts hold thusly. This should not happen with either a Republican or Democratic agenda. True conservatism is all about conserving the rule of law and the understanding that such rule must be non-partisan, objective, and equally applied to every instance, regardless of the political agenda or outcome.
The Constitution does not in fact pick winners and losers. It provides a specific set of limited powers to the government to operate. Regardless of one’s political opinion, the government cannot compel an individual author to express a message that is against his or her sincerely held belief. This is why we have the First Amendment that enumerates these protections.
Our judicial branch is supposed to be the weakest because it cannot constitutionally reach or opine or weigh in on political questions and considerations. Oregon and every other progressive court is doing the exact opposite, reaching far beyond the judicial branch’s limited scope of constitutional authority. It needs to stop.