Commentary: Cakes, Pro Football And The First Amendment


By John Krull 

INDIANAPOLIS – The First Amendment sure seems to confuse a lot of people.

Two episodes in recent days demonstrate that.

On Monday, the U.S. Supreme Court ruled, 7-2, in favor of a Colorado baker who refused to prepare a wedding cake for a same-sex couple. The court issued its ruling on narrow, procedural grounds.

That didn’t stop social conservatives from touting the decision as a victory for their claim that they could ignore civil rights laws protecting LGBTQ citizens for religious reasons.

The ruling was no such thing.

The justices said one member of the Colorado Civil Rights commission had made remarks that demonstrated a hostility toward religion.

That, in constitutional terms, is a no-no for government officials.

Government’s role regarding religious faith, the constitution says, is to be neutral. The state cannot elevate one faith or one set of religious values above another – or above those of people who are agnostic or atheists.

This is the issue social conservatives who keep trying to re-introduce organized public-school prayers cannot seem to grasp.

The moment a teacher or administrator – who is a government employee – starts to lead the prayer, that educator elevates one faith tradition above others.

And violates the Constitution.

The students can pray on their own and no public-school employee can stop them, because doing so also would violate that constitutional guarantee of neutrality on questions of faith.

None of this, though, means that we all have a First Amendment right to ignore laws with which we disagree.

The Supreme Court’s ruling said as much.

Justice Anthony Kennedy, who wrote the majority opinion, went out of his way to say that this ruling did not speak to the baker’s larger claim.

Perhaps that is because Kennedy and the other justices understand that accepting the social conservative argument – that they have a First Amendment right of conscience to pick and choose which laws they will obey and which ones they will defy – would open the floodgates.

After all, people can find or have used biblical or faith-based arguments in defense of slavery, segregation and child sacrifice, among other things.

The bet here is that, when a “clean” case arrives before it, even this conservative court will rule that social conservatives have to obey the law, just like the rest of us.

If people want to avoid preparing wedding cakes for gay couples, then they probably will have to stay out of the bakery business.

The other misunderstood First Amendment issue involved the squabble between President Donald Trump and the Philadelphia Eagles.

The Eagles won the Super Bowl.

Once upon a time, that meant a celebratory visit with the president of the United States.

No longer.

Because President Trump has condemned the pro football players who knelt in protest during playing of the national anthem, many of the Eagles said they didn’t want to meet with him. This prompted the president to withdraw the invitation.

This is one of the silliest disputes I’ve seen.

I continue to marvel at the fact that football fans who swallowed the NFL’s attempts to cover up a long history of traumatic brain injuries to players or horrid instances of domestic violence reserve their outrage for peaceful protests. And I wonder why the president of the United States seems to summon up more interest in this issue than he does in, say, averting a trade war with much of the rest of the world.

That said, all who are involved here are acting within their First Amendment rights.

The NFL players who take a knee have a right to do so. League officials and team owners have a right to embrace or disassociate themselves from those protests, as they see fit.

And, so long as he doesn’t try to use the power of government to squelch the protests, President Trump has a right to say he doesn’t like the kneeling.

The Eagles and the president also are within their rights to say they don’t care much for each other.

Our First Amendment-guaranteed right of free speech is supposed to be a free-for-all, in all senses of the phrase.

Maybe that’s what confuses so many people.

John Krull is director of Franklin College’s Pulliam School of Journalism, host of “No Limits” WFYI 90.1 Indianapolis and publisher of, a news website powered by Franklin College journalism students.


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