Why it's legal to prevent businesses from saying they won't bake a gay wedding cake

The speech prohibited in the cake case, like the “White Applicants Only” sign, is thus quite similar to solicitation of illegal conduct, or offers of illegal conduct, which the Court has held are constitutionally unprotected (see United States v. Williams (2008)), and that are often themselves labeled a form of “conduct” (again, here shorthand for unprotected speech closely related to particular forbidden conduct). Threats of illegal conduct are no more protected than such solicitation or offers.

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Now this doesn’t resolve the question whether the cake case properly interpreted Oregon public accommodation law; whether a $135,000 damages award is sound; whether all the reasoning behind the Oregon administrative agency’s decision that the bakers’ public statements indeed violated Oregon law is correct; or whether there should be such laws, or religious exemptions to such laws.

But if refusing to sell cakes for same-sex commitment ceremonies (which today would be same-sex legal marriage ceremonies, since same-sex marriage is now legally recognized) indeed violates Oregon law, an order prohibiting such refusals is constitutionally valid.

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