Berkley Center

At the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court justices struggled with supporting the cake baker or the gay couple. The baker, Jack Phillips, had refused a wedding cake to the couple, Charlie Craig and David Mullins, the minute he realized they were gay. Sexual orientation discrimination is illegal in Colorado. The Colorado courts consistently sided with the couple over the baker. Nonetheless, the justices are deciding if Phillips had a First Amendment right not to sell the cake, which he views as expressive speech and not just a cake.

The justices appeared to disagree over where and how to draw the lines. Justice Kagan asked questions about “three axes on which people are asking…what’s the line.” The first line was the job of the cake baker as compared to a chef, a florist, or other commercial actors. The second line was about sexual orientation discrimination, in contrast, perhaps, to older cases about race or gender. The third line was about weddings, asking whether other ceremonies should be treated the same way by the law.

At the beginning of the argument, the justices had an extended debate about line one, discussing who is similar to a cake baker, wondering about the differences between a baker, a chef, a florist, a hairstylist…and even a makeup artist! Phillips’ lawyer was willing to draw lines among them, protecting some and not others, and unwilling to accept Justice Sotomayor’s point that the purpose of food is to be eaten, not to make a speech. On this issue, Justice Kennedy appeared sympathetic to Colorado, asking, “What would the government’s position be if…the baker prevails in this case, and then bakers all over the country received urgent requests: Please do not bake cakes for gay weddings. And more and more bakers began to comply.”

Almost everyone stumbled over line two, about race, gender, and sexual orientation discrimination. The lesson of the race cases should be that businesses have to obey the antidiscrimination laws, and that the First Amendment does not exempt them from the state’s commitment to the Constitution. Justice Breyer asked for a sexual orientation line that would not “undermine every civil rights law” in history, and Justice Sotomayor asked about the famous Piggie Park case, which upheld race discrimination laws against First Amendment claims. She also suggested that race, national origin, gender, and now sexual orientation all offer a compelling state interest to limit First Amendment speech. 

Yet the baker’s lawyers and some of the justices seemed to put race in a category by itself, deserving more protection than gender or sexual orientation discrimination. This position is not surprising given the Court’s equal protection jurisprudence, which has long made racial classification more suspect than other categories. Justice Ginsburg hinted that she too might find sexual orientation discrimination to be as serious as racial animus, stating that the “only message” given by the bakers is that they have to follow the law. The gay couple’s lawyer shrewdly noted that distinguishing racial and sexual orientation in level of treatment would “be to constitutionally relegate gay and lesbian people to second class status.” In the long run, that would allow bakeries to refuse to sell to black families, photographers to refuse to sell to working women, and florists to refuse gay funerals. His answer reaffirms the importance of line one for everyone.

Line three, just like line one, opened the Court to yet more questions, asking what ceremonies would be treated like weddings. Funerals? Bar Mitzvahs? Communions? Is a wedding cake really a baker’s religious statement at the couple’s wedding? 

Justice Kennedy’s questions also suggested that the commission had violated Phillips’ religious rights. Many commentators believe Justice Kennedy, who is known for his commitment to both gay rights and the First Amendment, will find a smart middle combination of lines in this case that will protect everyone’s rights. But the three conflicting lines suggest that the justices who see only line one have the best insight. As Justice Sotomayor suggested, racial attitudes changed because the law forced commercial actors to treat everyone equally no matter what they wanted to say. “You can choose to sell cupcakes, or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door.” That is the line that the Supreme Court should draw instead of dividing so many different ways on three different issues.