The Public Official’s Duty: Speak One’s Mind or Mind How One Speaks?

The Public Official’s Duty: Speak One’s Mind or Mind How One Speaks?

The case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission has prompted the spilling of gallons of virtual ink while, ultimately, settling little.

In 2012, Jack Phillips, a baker in Colorado, declined to make a custom wedding cake for a same-sex couple. The reason he offered was his religious opposition to same-sex marriage.

While same-sex marriage was not then legal in Colorado, the baker’s action was determined to be discriminatory in violation of Colorado law. Before the U.S. Supreme Court, attorneys for the baker argued that both his 1st Amendment right not to be forced to utter speech inconsistent with his beliefs and his 1st Amendment right of religious expression were violated by the state order.

The baker won . . . more or less.

The majority opinion was crafted very narrowly, resting largely on comments made by public officials on the state Civil Rights Commission. Justice Anthony Kennedy, writing for the majority, argued that through its disrespectful comments about Mr. Phillips’ religious convictions, the “neutral and respectful consideration to which Phillips was entitled was compromised.”

Justice Ruth Bader Ginsburg’s dissent, joined by Justice Sonia Sotomayor, shared the majority’s concern about the conduct of the officials on the commission while disagreeing that, as a result, the original plaintiffs should lose their anti-discrimination case.

Whatever one’s view of this decision, the court’s unanimous concern with the comments of public officials merits careful reflection.

Public officials who are criticized for their statements sometimes insist on our right to speak our minds, to “call ‘em as we see ‘em,” and to resist any suggestion that we be “politically correct.”

Whatever the merits of such claims, public officials have a duty to be prudent in our speech, for at least two reasons.

One, potential litigation.

We will never know how Masterpiece Cakeshop, Ltd. might have been decided had no one on the Civil Rights Commission spoken with such disdain about the religious convictions of the baker. What we do know is that such comments, at best, made it more difficult for the State of Colorado to defend its actions.

All litigation in which governments become involved is costly to the taxpayers, though resulting settlements or resolutions of important questions of law may make such expenses justified. Litigation governments lose because public officials vent their personal prejudices, however, are a waste of taxpayer funds.

Fundamentally more important, public officials have a duty of fairness toward all members of the public. It doesn’t matter if the member of the public is Protestant, Catholic, Jewish, Muslim, Hindu, Buddhist, Wiccan, an adherent to some other religion, uncertain about ultimate questions, or an avowed atheist. It doesn’t matter whether the member of the public is S, L, G, B, T, Q or A. It doesn’t matter from what region of the world they or their ancestors hail, nor how many children they have, nor what language they speak.

And it doesn’t matter what our personal beliefs (or prejudices) might be.

Public officials have a duty to exercise the powers of office justly, equitably applying the law to all affected parties in all cases.

And that begins, both in appearance and in fact, with how we speak about and to others.