US: Drawing a Line in the ‘Gay Wedding Cake’ Case

John Corvino member of The Stone: A forum for contemporary philosophers and other thinkers on issues both timely and timeless. The series moderator is Simon Critchley, who teaches philosophy at The New School for Social Research.

At first glance, the Masterpiece Cakeshop case — for which the United States Supreme Court will hear arguments on Dec. 5 — looks easy. In 2012 Charlie Craig and David Mullins attempted to buy a wedding cake at Masterpiece Cakeshop in Lakewood, Colo. The owner, an evangelical Christian named Jack Phillips, refused to sell them one. The Colorado Civil Rights Commission found Phillips liable for sexual-orientation discrimination, which is prohibited by the state’s public accommodations law. State courts have upheld the commission’s decision.

The reason the nation’s high court is giving the case a second glance is Phillips’s First Amendment claim that he was not, in fact, discriminating on the basis of sexual orientation, but on the basis of a particular message: endorsement of same-sex marriage. Phillips made it clear to the gay couple that he would happily sell them other items: birthday cakes, cookies, and so on. He welcomes LGBT customers; he is simply unwilling to use his artistic talents in the service of a message that he deems immoral.

One might better appreciate Phillips’s position by considering a second case. In 2014, not long after the commission announced its Masterpiece decision, William Jack attempted to buy a cake at Azucar Bakery in Denver, Colo. Specifically, he requested a Bible-shaped cake decorated with an image of two grooms covered by a red X, plus the words “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” The owner, Marjorie Silva, refused to create such an image or message, which conflicts with her moral beliefs. She did, however, offer to sell him a Bible-shaped cake and provide an icing bag so that he could decorate it as he saw fit. The customer filed a complaint alleging religious discrimination, which is also prohibited by Colorado’s public accommodations law. But the commission disagreed, arguing that Silva’s refusal was based not on the customer’s religion, but on the cake’s particular message.

Jack Phillips’s supporters have been crying foul since. If the First Amendment protects Marjorie Silva’s right not to condemn same-sex relationships, they argue, then it protects Jack Phillips’s right not to celebrate them. But there is a key difference between the cases, and the difference points to a useful line-drawing principle.

Put aside the plausible objection that treating cakes as speech — especially cakes without writing, as in the Masterpiece case — abuses the First Amendment. And put aside the even more plausible objection that whatever “speech” is involved is clearly that of the customers, not of the baker: As law professors Dale Carpenter and Eugene Volokh explain in a Masterpiece brief, “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.’ ” After all, that objection is arguably just as applicable to the Bible-cake case.

Finally, put aside the objection that “It’s just cake!” That could be said to any of the parties in these disputes, and it doesn’t alter the deeper rationale for anti-discrimination laws, which are about ensuring equal access in the public sphere — not just for cakes, flowers, and frills, but for a wide range of vital goods and services.

It is tempting to describe Marjorie Silva’s Bible-cake refusal as the moral mirror-image of Jack Phillips’s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.

But that’s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business.

Therein lies the crucial difference between the cases: Silva’s objection was about what she sold; a design-based objection. Phillips’s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple’s commitment ceremony. Read more via New York Times