Let Them Eat Cake


Perhaps the most discussed Supreme Court case of the moment is the “gay wedding cake” case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. The issue? Whether a baker must provide a wedding cake that celebrates gay marriage when they provide such a cake for heterosexual marriage. The Supreme Court heard oral arguments this past December, and a decision is expected this spring. Prior decisions by a Colorado Administrative Law Judge and the Colorado Court of Appeals have been definitive in favor of the gay couple. Yet on February 5 a California Superior Court judge ruled in a comparable case in favor of a baker. In highly similar circumstances Colorado found that providing a cake did not constitute “speech” whereas the California court found that it did.

The only notable difference in the two cases is that the Masterpiece case lacks detail. While the parties agree to the same set of facts, these facts are sparse. Here’s what the public knows: In July of 2012, Charlie Craig and David Mullins entered Masterpiece Cakeshop in Lakewood, Colorado, and sat with owner Jack Phillips at the cake consulting table. They stated that they wanted a cake for “our wedding.”  Phillips replied “I’ll make you birthday cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” Craig and Mullins then left the establishment—after dropping some f-bombs according to Phillips. However, there was no further discussion of what the cake would look like, such as type of icing and decoration, whether any written message would be requested, or whether a wedding “topper” (a small rendition of a marrying couple at the top of the cake) was desired. Nonetheless, much of the legal wrangling has been over the customized nature of wedding cakes.

The Colorado baker contends that the provision of a wedding cake related to a gay marriage violates his religious beliefs. He states that he employs creative artistry in his wedding cakes and that providing a cake for a gay marriage would force him to provide a message of approval and celebration that under the First Amendment he should not be required to provide. The counter-argument is that Colorado Law requires non-discrimination in places of public accommodation, including bakeries, for certain protected classes, namely disability, race, creed, color, sex, sexual orientation, marital status, national origin, and ancestry.

The case is of intense interest because two important and legitimate concepts are butting heads.  The baker is entitled to his sincere religious beliefs and is entitled to make his own determination of what to speak and what not to speak, including the “expressive speech” that in his view is inherent in providing a celebratory cake for a gay wedding.  The couple is entitled “full and equal enjoyment” of publicly available products and services, including baked goods, and have a right to not be discriminated against. During Supreme Court oral argument the Justices appeared to be struggling with where to draw the line between these two competing principles.

Now a California Superior Court has rendered a decision that is the polar opposite of the prior Colorado decisions. It also may provide the distinction that the Supreme Court needs to make a ruling in Masterpiece. Whereas Colorado has ruled that the provision of a wedding cake is not expressive speech, California has determined that “there could not be a greater form of expressive conduct.” The California decision also points to a dividing line between the rights of the two parties:  “The difference here is that the cake in question is not yet baked,” a fact not at all clear in the Colorado case.

The California court states:

"No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose.  No baker may place their wares in a public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification."

If the Supreme Court employs this logic, they would say the Colorado baker must serve all customers without discrimination for publicly available goods that are already produced (as baker Phillips indicates is currently the case) but may not be forced to custom-produce a creation that either directly or indirectly expresses views for which he does not agree.

This concept does not answer every issue. The Colorado baker contends that any cake he makes for a gay marriage celebration forces an incorrect message of approval.  Yet imagine a custom-made but generic cake with no wedding topper and no written message. Will the Supreme Court side with non-discrimination law or with free speech in that instance?

Nonetheless, the general approach indicated by the California Court may also provide insight to comparable situations, such as whether a photographer must provide his or her services to any event and whether a printer can decline to print invitations or other products that present messages for which they do not agree.

Equal treatment for all members of a protected class is what guides current non-discrimination law.  A message such as “Halloween is for witches” can be refused if it is refused for all customers, but must be provided to all if it is provided to some.  The Colorado baker refuses all business for Halloween content due to his religious beliefs.  However, his message that “I don’t make cakes for same-sex weddings” appears discriminatory under the current non-discrimination standard. It provides cakes for some parties but not to a protected class.

Now the California ruling is offering a specific dividing line that attempts to balance the legitimate but opposing rights of the parties. In that approach the message “We do not make cakes for same-sex weddings” appears to be unacceptable because it relates to all cakes, including those that might be already baked and readily available in a display case. However the revised message “We do not make custom cakes for same-sex weddings” appears to be acceptable, especially if it accompanies a message such as “Our publicly-available goods are available to all customers on a non-discriminatory basis.”

Nobody likes to be forced to do something that they don’t want to do. Likewise, nobody wants to be pushed to second class business status because of who they are. These important American ideals are in conflict here, and the Supreme Court must grapple with the most appropriate balance.  Stay tuned.

Philip Barton  is a political writer and former government consultant.  He can be reached at pbarton@middlevision.org.