Wedding Bell Blues (Update)

The Supreme Court will hear oral argument in one of the most contentious cases of the term, Masterpiece Cakeshop v. Colorado Civil Rights Commission. In advance of the argument, the Cato Institute put on a debate between Ilya Shapiro and John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy, NAACP Legal Defense Fund. It was not only a great debate, but more importantly, demonstrated that we can have thoughtful discussion about contentious issues. Some of us, at least.

To many, the issue on the table is one of conscience. Can Jack Phillips, because of his sincerely held beliefs, refuse to bake a cake for a same-sex wedding? This is certainly the issue that most people have in mind when arguing the point. Remember when USA Today twitted that this would re-open the same-sex wedding debate? Remember when a Colorado state senator tried to change the law to create such a right?

There is no doubt that a great many people refuse to accept the Supreme Court’s ruling in Obergefell v. Hodges, and see Masterpiece Cakeshop as their way around the law. Why doesn’t the First Amendment’s Free Exercise Clause protect their belief that same-sex marriage is wrong? As strongly as these people may want to believe, this just isn’t the law.

[M]ore than 50 years ago, John W. Mungin, a black Baptist minister, was threatened with deadly force and told to leave a famous South Carolina barbecue restaurant—all because its owner held to the belief that the races should be kept strictly separated.

As Cristian Farias explains, the 1968 decision in Piggie Park puts the question to rest. No matter how sincerely your deeply held religious belief may be, it does not provide cover for unlawful discrimination. And that’s why the Free Exercise argument in Masterpiece is going nowhere. But that’s hardly the end of the issue, despite the fact that people antagonistic to gay marriage really, really believe this to be the real point of the case.

This time, there’s a tiny wrinkle: Jack Phillips, the religious baker at the center of the Masterpiece Cakeshop case, is claiming that that both his freedom to exercise his Christian faith and his right to free speech prevent him from creating a custom-made wedding cake for a married gay couple. He insists he harbors no animus toward LGBTQ people.

Recognizing that the Free Exercise argument was a loser, appellants shifted course to Free Expression, that the creation of a cake was a matter of artistic expression, and the state could not compel Phillips to express something he chose not to, even if his medium of expression was a cake.

Can baking a cake be art? There would seem to be plenty of TV shows to say so. And if it’s art, then it’s expression, just as any other piece of art. This isn’t to say all cakes are art. Some cakes are just cakes, a mixture of stuff that comes out of the oven tasting delicious, but otherwise unremarkable as a means of expression.

During the Cato debate, which was largely divided between Shapiro arguing expression while Schnapper-Casteras focused more on religion and the over-arching policy of ending discrimination based on sexual orientation, a fact of some significance emerged.

It seems Phillips, upon learning that he was being asked to make a wedding cake for a same-sex couple, refused to do so, and the couple then left. There was no discussion of design. There was merely the combination of words, “cake” and “wedding,” and that was sufficient for Phillips to decide that he didn’t want to do it.

If accurate, this blows a huge hole in the Free Expression argument. If Phillips’ refusal was to the mere idea of baking a cake for a gay couple because it would be eaten during their wedding reception, prior to any discussion of what they wanted, and thus prior to any basis to believe that artistic expression was involved at all, then the fact pattern doesn’t bear out the contention. What if the couple wanted a nice wedding bobka? It could happen.

But there is another view, reflected in the amicus brief submitted by Dale Carpenter and Eugene Volokh, no enemies of Free Expression they.

We argue, in essence, that the Free Speech Clause does not protect a baker’s right to refuse their request because baking cakes is conduct that is neither historically nor inherently a form of protected speech. Furthermore, contrary to what the Justice Department argues, requiring a baker simply to make a cake for a wedding is not tantamount to requiring him to participate in the wedding celebration.  “Such theories,” we argue, “would convert the First Amendment into a broad anti-complicity principle punching a hole through the center of the Nation’s anti-discrimination laws.”

Note the “anti-complicity” reference, which has become a very popular argument of late when seeking to impose, or relieve a person from some duty which is then used to implicate moral culpability. If someone fails to act against discrimination, they are complicit in it. If someone acts, they are complicit as well. Would Phillips’ baking a cake make him complicit in supporting gay marriage, or would it just make him a baker?

The heated rhetoric surrounding arguments over discrimination has devolved to a point of absurdity. As the fuzzy line of meaning is crossed with abandon, the law is left to ponder ridiculous questions. It’s not that they can’t be framed as real or sincere questions. Indeed, they are exceptionally sincere, the closer we come to the edge of the line.

Who cares that a couple of guys want to marry? Who cares whether you buy your cake from Phillips or the bakery down the street? Who cares if a baker uses food coloring to turn a white cake into a rainbow cake? A lot of people, apparently. What’s unfortunate is that “live and let live” doesn’t answer these questions before having to get the Supreme Court involved.

Gay people exist and marry. It’s time to move on. And as long as they pay for their cake, just bake it. That America spends its time figuring out ways to make gay people’s lives miserable means we must not have enough real problems to occupy our time. Except we do.

Update: Remarkably, it appears the justices found the Free Exercise argument more persuasive than the Free Expression. Unsurprisingly, it looks like Justice Anthony Kennedy will be the deciding vote. At oral argument, Justice Kennedy said to Colorado’s attorney:

It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.

51 thoughts on “Wedding Bell Blues (Update)

  1. Davis C.

    Are wedding cakes not inherently expressive (i.e. celebratory)? If they are, then it doesn’t matter whether Phillips talked about the cake design with the couple before refusing. The context in which the cake is to be eaten makes it meaningful just as much as the cake’s features.

    1. SHG Post author

      Don’t be ridiculous. If a couple bought a cake from the Piggly Wiggly to eat at their wedding, does is morph from an assembly line edible into a work of art? This is where the insufferable rhetoric (“context makes it meaningful”?) turns every aspect of life into some adventure in feelz. Both sides do it. Both sides are full of shit.

      1. Davis C.

        That’s not what I mean. If you’re baking a cake with the knowledge that it will be eaten in a wedding, it doesn’t make a difference what external features the cake has. The cake is being baked for the purpose of celebrating the wedding; that is part of its meaning. Taking an ordinary cake and bringing it to a wedding is not the same.

        1. SHG Post author

          Sometimes a cake is just a cake. Everybody wants to wrap their sacred cows in pretty bows to turn them into mountains worth dying on. You’re just the other side of SJW, and just as myopically passionate to grasp that you’re just as vapid.

          1. Davis C.

            Sometimes a cake is just a cake. But sometimes it’s not. And while I do lean toward the side of the baker, I’m not entirely sold on his argument. I find some of the briefs filed in support of the state to be pretty convincing. I just don’t think that his case is entirely without merit, as you seem to.

            1. Davis C.

              At this point I’m just pushing back on your apparent assumption that I’m an unduly passionate fool because I hold an opinion you think is shallow and stupid.

            2. SHG Post author

              Do you suppose anybody but you gives a flying shit? You said your piece. Either it’s shallow and stupid or brilliant, regardless of what I think about it. Move on.

      2. Beth Clarkson

        According the NPR this morning, the baker was willing to sell them any cake already made and up for sale. He just wasn’t willing to contract to bake them one to order. I’m not sure if that makes any difference to the case.

        1. SHG Post author

          That’s my understanding too. But baking “one to order,” or as Turk puts it, “a custom cake,” doesn’t make it artistic expression. Maybe they wanted a five-tier cheesecake, no words on top or shape of a dove sort of thing. Maybe the only cakes he had in the shop were chocolate and they wanted vanilla. Custom and artistic are not synonymous.

          1. KP

            Sounds like you’ve never baked a cake boss…

            Its sad that the country that sees iteslf as a world leader can’t see the main thrust is ‘Are you a slave to The State’ or a citizen? It has to be couched in fake terms of discrimination and artistry.

            “Can The State force you to work against your will” is the question, the rest is ridiculous.

      3. Keith

        does is morph from an assembly line edible into a work of art?

        Your comment brings to mind “when” the expression is taking place. I would declare that a custom order cake is expression, while a “standard” cake (while on a menu or in a case) would not be.

        Not that I cared much about the cake at my own wedding (as the only quality I required was deliciousness), but based on how the order was treated, I understand that people get very concerned that the cake is “just right”, which I assume means that it expresses their desires for the day.

  2. Norahc

    Would this even be a court case if the cake was for neo-nazis and had swastikas on it?

    Because no matter how this case is decided, it’s going to set up something like that for the next time.

    1. SHG Post author

      Regardless of whether it would, it very well may be in the next iteration, so what? As Turk notes below with the obvious alternative hypo, what if a black baker was forced to bake a KKK cake? My view of the facts of this case is that the question isn’t adequately raised by the fact pattern, but it could arise in the future. If and when it does, then it will have to be addressed. How we managed to survive as a nation up to now without the courts deciding these questions is a mystery.

      1. B. McLeod

        Well, we used to not have justices like Kennedy, who seems to think he is Justice Politenessman and that the Court’s key function is to prevent “affronts to dignity.”

  3. Turk

    It seems Phillips, upon learning that he was being asked to make a wedding cake for a same-sex couple refused to do so, and the couple then left. There was no discussion of design. There was merely the combination of words “cake” and “wedding,” and that was sufficient for Phillips to decide that he didn’t want to do it.

    If accurate, this blows a huge hole in the Free Expression argument.

    Not necessarily, if the entire idea behind the cake shop is custom made cakes. That the cake would be custom may well have been implied by the underlying facts (of which I am unfamiliar).

    What if 100% of their cakes are custom? What if there is no standard Fudgie the Whale cake? Wouldn’t it all be expressive art?

    And if 95% are custom art? Then one might argue that the answer should have been from the owner, “You can have a copy of anything I’ve made before but I’m not creating anything new for you.” And kicking the couple out of the store was wrong without giving that option.

    (I skimmed the facts on the cert petition and didn’t see the answer to that 100% question).

    I’m not sure the result you predict is quite so clear as it may well be heavily fact-dependent — depending on what this cake-artist actually did on a day-to-day basis prior to the couple getting the boot.

    If the result comes out as you suggest, without any wiggle room, It could require a baker to make a cake depicting a lynching for the KKK, just because they asked for it and were willing to pay.

    1. SHG Post author

      I don’t know nothin’ about birthin’ no babies, but Ima gonna opine anyway. And at length, too.

      You may be willing to make assumptions about the facts, but us lawyers prefer to use actual facts (we call it evidence). And I have no clue what your last paragraph is supposed to suggest, but if the issue is to be ultimately decided, there will eventually be a fact pattern that will make sad people cry because it doesn’t turn out the way they want.

      Sometimes, we just have to drive on the left no matter how badly we want to drive on the right. Law is an imperfect tool to begin with, and even more so given that discrimination law has morphed from a constitutional equal protection limitation on government to a regulation of individual beliefs. Once that Pandora’s box was opened, it was clear that no principle would satisfy everyone.

      1. Turk

        You may be willing to make assumptions about the facts, but us lawyers prefer to use actual facts (we call it evidence).

        You indicated that you weren’t clear on the facts (“If accurate, this blows a huge hole…”), and I sought to indicate that a different fact pattern would have a different result.

        But a skim of the cert petition didn’t resolve that factual issue, which may go to the heart of a decision. Was the nature of the biz such that every cake was a new piece of art, or were there some types of cookie-cutter alternatives to be offered that didn’t involve any new expressions?

        If every one of his cakes is an original piece of expressive art he could win.

        As to my last paragraph — if every one of his cakes is an original piece of expressive art, and he is compelled to create any art that anyone demands — it deals with the ramifications of a decision against the cake maker.

        Hopefully this comment is a bit less sloppy.

        1. SHG Post author

          What I wrote was that I was relying upon the facts as expressed at the debate. I wasn’t making them up, but if they got their facts wrong, then my reliance on their facts would be wrong.

          And again, custom (or original or any other word that sounds kinda special but does not invoke actual expression specifically) is not synonymous with artistic expression.

          1. Turk

            And again, custom (or original or any other word that sounds kinda special but does not invoke actual expression specifically) is not synonymous with artistic expression.

            Does the long sought after definition of “artistic expression” await us?

            Will the decision cite to Potter Stewart’s “I know it when I see it” in Jacobellis v. Ohio?

            Anyone taking odds?

            1. SHG Post author

              Now that’s a good question, but I don’t think they’re going to reach it. And if they do, let’s hope they don’t do a Potter Stewart punt.

    2. Dave

      This is all over the place. Is your point that you have no actual ideaf what you’re trying to say, so you’re just making stuff up and throwing shit against the screen to see what sticks? This is pointless.

      1. SHG Post author

        Maybe Turk was just ruminating. I couldn’t figure out where he was going either, but wherever it was, he didn’t end up there.

  4. B. McLeod

    I think many people are simply hoping that the Court, having flipped the law to same-sex marriage in Obergefell, will take this occasion to flip it back. The guiding precept being that the Court which pulls one ruling out of its butt can pull a contrary ruling out of its butt.

    Notwithstanding that basic precept, there is nothing in the slightly-altered composition of the Court to suggest that this would occur. Especially given the recency of Obergefell as a precedent. Maybe when more justices have changed, but not today. Of course, the Court could still pull some special, freedom of cake-baking rule out of its butt. You never really know until the opinions hit.

    1. SHG Post author

      Gay marriage is a done deal, and there’s no going back. I have no clue where the Court will come out on this one, but reversing Obergefell ain’t happening.

      1. Patrick Maupin

        The “tiny wrinkle” isn’t really new. The introduction of the petition in Elane Photography v. Willock started with the quote that “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression[.]”

  5. Bruce Coulson

    The case is clear. The couple wanted a cake. The baker refused to make it for them. Everything else is (excuse the expression) “icing on the cake’. An individual could refuse to make a cake (or anything else) for a wedding of two gays; a business cannot (in most circumstances). One wonders why the Court is even bothering to hear this case…

    1. SHG Post author

      You should have sent them a letter telling them that. They could have used their time better if only they knew.

        1. SHG Post author

          Between some outlier law in Colorado, and some squishy facts, probably not. This is not the hill for these issues to die on.

          That said, they’re going to have to deal with the problem created when they went from applying equal protect to government to applying it to private parties. They can’t kick the can down the road forever.

            1. SHG Post author

              Yup. For all the bravado leading up to this case, somebody is going to crash and burn. Then come the recriminations and excuses, because reasons.

          1. Sotted_Owl

            “. . . they’re going to have to deal with the problem created when they went from applying equal protect to government to applying it to private parties.”

            That being the case, could the protection from involuntary servitude apply?

  6. I'm a real christian, I am!

    Working at the XYZ Auto Company on the Assembly line putting on wheels and tires, I take my Artistic Expression (of putting on the wheels and tires) very seriously and when I find out that the eventual purchaser will be using this in transporting Gay Married People, I just leave the wheels off.

  7. PseudonymousKid

    Dear Papa,

    Art is everything and nothing at all. This isn’t new. The best sculpture in the world is all about it. It’s Marcel Duchamp’s “Fountain” from 1917. We’ve really progressed since those backwards times, right pa? Cakes are as much art as urinals or anything else.

    The Supremes should have checked the waters before wading into them. Nothing good will or can come of this and yet it’s so important to so many.


    1. SHG Post author

      I went to an exhibit at the Met and thought it unimpressive, until Dr. SJ informed me I was in the men’s room. Boy, was I embarrassed.

  8. Pedantic Grammar Police

    I don’t have a dog in this race, but I am suspicious of the idea that anyone can determine what is art and what isn’t. Been to the Museum of Modern Art lately? My standard would be something like “If a 3-year-old could do it, it’s not art.” The curators at MOMA obviously disagree.

  9. MichaelW

    The bakers can’t claim free expression if the gay couple is willing to choose an identical cake to one the bakers already made for a hetero couple. Expression doesn’t extend to how it’s used after the bakers are out of the picture.

    The bakers can say they won’t make a rainbow cake with tutti fruiti frosting as long as they won’t make that cake for anyone, homo or hetero. There’s no discrimination if they won’t make it for anyone. Their discrimination problem arises when they won’t bake/sell a cake to a gay couple that is essentially the same as a cake they’ve sold to a straight couple.

  10. Kurt

    I feel a shower of condescension coming on here, but I just can’t help myself, as this seems nearly as perfect an opportunity for proposing this as I could find.

    I’m potentially all on the side of the baker – not as artist, and not because I agree with him (I don’t), but as a business owner with rights to freedom of association. Bear with me on this. I’m making a political argument, not a narrowly legal one.

    It seems pretty obvious that in the current legal environment the baker has no real argument.

    IMHO, this is proper if his business is protected from liability by incorporation or other legal arrangements. Such arrangements, it seems reasonable to me, makes the business a ward of the State, and therefore reasonably subject to all sorts of regulation, and him with it, as owner and employee of the concern.

    However, if his business is a full on, non-incorporated, not-liability-limited sole proprietorship or partnership , then he should have the ability to conduct business in any manner he deems fit, absent fraud or other actions that are crimes of aggression – and discrimination based on personal belief, no matter how malodorous, shouldn’t qualify as a crime in this sense.

    I’ve thought over this position long and hard – since the ’70s – and the consequences of such a policy seem beneficent, and likely thoroughly disruptive to the current order.

    I’ll not start down the path of full discussion of what other provisions should be included in the differentiation between businesses with and without the government shield against liability, but there are a couple that might occur to those who care to ponder my starting point.


  11. Solon

    “That America spends its time figuring out ways to make bakers’ lives miserable means we must not have enough real problems to occupy our time.”
    Fixed it for you, although that appears to me simply to restate the problem. “Just go to another baker” seems as apt a response as “as long as they pay for their cake, just bake it.” Your ultimate argument seems to be a practical one: why make a big deal about this? But that cuts both ways equally, that’s why this is a problem.

    1. SHG Post author

      Yes, it cuts both ways, as do a great many issues that arise in the ordinary course of life. That doesn’t necessarily make them problems in need of Supreme Court resolution.

  12. maz

    I will not rest until somewhere, some day, a black, fundamentalist baker is asked to make a lynching cake for the wedding of two gay Klansmen….

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