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Abstract

Those celebrating a same-sex union may wish to engage the services of a baker, a photographer, or a florist. Some vendors have refused to provide wedding services for such couples, claiming a First Amendment right not to endorse marriage equality. While the right not to speak has been recognized, it is much less robust than is commonly thought and, as currently understood, would clearly not apply to the vendors in these kinds of cases. This article discusses the jurisprudence, demonstrating why these kinds of cases are not covered by the right and explaining why the recognition of such a right would neither be warranted by the law nor good public policy. The recognition of a robust right to refuse to engage with other community members so as to avoid a possible imputation of endorsement could further balkanize an increasingly fractured nation.

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