Sometimes a wedding cake is just a baked mixture of flour and milk and sugar.
My first prediction for 2018: The United States Supreme Court will rule in favor of the gay couple, Charlie Craig and David Mullins, in the “Masterpiece Cakeshop” case involving the Christian baker, Jack Phillips, who refused to make a cake to celebrate their same-sex wedding. Here is why I anticipate the Court will reach that (in my view, correct) decision.
In 2012, Mr Craig and Mr Mullins went to Mr Phillips’s “Masterpiece Cakeshop” bakery in Lakewood, Colorado, to talk about ordering a custom-made wedding cake to celebrate their upcoming marriage. Before they discussed the details of the cake, however, Phillips told them his Christian principles prevented him making a custom-made wedding cake for a same-sex marriage. (Phillips claims he would have sold Craig and Mullins a cake off his shelves, refusing only to produce a custom-made cake. Craig and Mullins insist that Phillips said he would “bake no cake” for a same-sex wedding celebration, which they understood to mean he would not sell any “baked goods” for their event.) Craig and Mullins reported the incident to the Colorado Civil Rights Commission, which determined that Phillips had violated the state’s anti-discrimination law.
Under federal and state “public accommodation” laws, businesses open to the public must serve everyone, regardless of race, sex, ethnicity, etc. Mr Phillips, the baker, argues that while he serves everyone, including gay customers, his right to freedom of speech would be violated if he were forced to make a wedding cake for a same-sex marriage. Such a cake, he claims, would be an “artistic” statement in favor of gay marriage, a statement in conflict with his Christian beliefs.
The Masterpiece Cakeshop case appears at first glance to be about a conflict of rights: The right of a gay couple to be served by a business versus the right of a business owner not be compelled, in the operation of his business, to engage in speech with which he disagrees.
I think the Court will rule against the baker, Jack Phillips, on the grounds that the act of baking a cake, even a wedding cake, is not in itself a form of expression. Which I believe would be the correct ruling. Mr Phillips’s free speech rights are not infringed when he is compelled to bake a “statement-free” cake, even one for a same-sex wedding. Making a cake with no expressive writing or colors or symbols or designs does not amount to speech. This is one of those times when a wedding cake is just a baked mixture of flour and milk and sugar.
Craig and Mullins, remember, never got to the point of discussing the details of the cake. Phillips was asked merely to make a cake that would be used to celebrate a same-sex marriage – and he stopped them right there. He refused to make a wedding cake for such a purpose, even if the cake was identical to one he made for a man-woman wedding.
Would the case be different if Craig and Mullins had had a chance to describe the details they wanted, and it involved mixing “pro-gay” themes into the cake? What if Craig and Mullins had begun their conversation at the bakery with a request that Phillips make a wedding cake with a rainbow color-scheme and the inscription “God Shall Bless Charles and David”?
Then I think the Supreme Court would be ruling against the gay couple and in favor of the baker. In that scenario, the baker is no longer being asked merely to make a cake, but to add something expressive, something a lot more like speech. He is being asked to add details and language that actually say something. The rainbow colors and the words “God Shall Bless Charles and David” would obviously express a message, a message the baker disagrees with. Then the cake becomes more than a baked mixture of flour and milk and sugar; it becomes a form of expression.
Even the State of Colorado, in its brief filed with the Supreme Court in support of its law and Mr Craig and Mr Mullins, recognized that being asked to make a wedding cake with expressive elements would be a different matter. While Phillips cannot refuse to sell “any wedding cake of any kind to any gay couple,” argued the State of Colorado, he would be free “to decline to sell cakes with ‘pro-gay’ designs or inscriptions.”
The next “public accommodation” case before the Supreme Court will probably involve something like that, a baker, or florist, or musician, or carpenter, declining to make something with a “pro-gay/anti-gay” or “pro-life/pro-choice” or “anti-this/anti-that” message. Then speech will actually be involved in the dispute, and that will be a much more difficult case for the Court.