Today’s Supreme Court Hearing Reveals Free Speech Debacle Inside a Gay Wedding Cake Trojan Horse

There hasn’t been a ton of coverage leading up to today’s hearing in the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In part that’s because the news cycle has reached such an unsustainably histrionic plateau that many of us can’t muster the focus to pay attention to any story that isn’t directly threatening our physical wellbeing within the next 12-24 hours. In part, however, it may also be because it’s a bit of a complicated case; it changes depending on the angles you look at it from. It’s a ‘wedding cake case,’ putting it under the now-broad category of cases wherein straight people have wanted to refuse goods or services (flowers, cake, pizza, etc) to same-sex couples around a wedding or commitment ceremony. Those cases are usually about religious freedom, and this one is too, in part — Jack Phillips, the baker in question, says that baking a cake for a same-sex union would violate his moral code and religious beliefs. However, it’s also about a lot of complicated legal questions involving the First Amendment, commerce and artistic expression and more, oh my!

In 2012, Charlie Craig and David Mullins tried to place an order with Jack Phillips’ Masterpiece Cakeshop for their upcoming wedding ceremony (same-sex marriage was not yet a legal reality in Colorado, the state in which the events of the case take place). Phillips refused to make a cake for the couple because he claims he felt morally prohibited from baking a cake for a gay union, although the couple hadn’t yet made any requests about what the cake should look like (so there was, in legal terms, no indication of whether it would be a particularly explicitly gay cake on its own merits or only gay in the context of being purchased for a gay celebration). The couple sued, and Colorado courts upheld their claim that Phillips had discriminated against them and struck down Phillips’ claim that his First Amendment rights were at stake.

So far this story isn’t necessarily unusual; similar wedding cases had been tried and had similar rulings. One important unique aspect of Phillips’ defense, however, is that it rests not just on a claim that his legal right to religious freedom is being violated, but also his right to free speech as guaranteed by the first amendment. Phillips — who describes himself as a “cake artist” — says that as his job is a form of expression, he is being forced in baking this cake to create a message condoning same-sex relationships that he disagrees with on a moral and religious basis. Specifically, he claimed that “…he had turned down the couple not because of their sexual orientation as such, but because “he could not in good conscience create a wedding cake that celebrates their marriage,” and that the issue at stake was nothing less than “expressive freedom of all who create art or other speech for a living.” The Trump administration’s lawyer has filed a brief in support of Phillips in the case.

The Colorado courts soundly struck down Phillips’ claim in this respect, “saying that his free speech rights had not been violated and noting that the couple had not discussed the cake’s design before Mr. Phillips turned them down. The court added that people seeing a cake created by Mr. Phillips would not understand him to be making a statement and that he remained free to say what he liked about same-sex marriage in other settings.” Whether the Supreme Court will feel similarly is unclear.

The deciding vote is assumed to be Justice Kennedy, who is at heart a conservative but has ruled in favor of LGBT people in the past, perhaps most notably in the 2015 marriage equality ruling. Based on their track records and their comments during the hearings, it’s assumed that Alito, Roberts and Gorsuch will side with Phillips; Clarence Thomas likely will as well. Sotomayor, Kagan, Ginsburg and Breyer will likely side against him. Kennedy’s line of questioning in the hearing left it unclear where his vote will fall; in response to the hypothetical supposition of Phillips putting up “a sign indicating that he would not bake cakes for same-sex couples,” Kennedy voiced that this would be “an affront to the gay community.” Later on, however, in a series of observation that seems almost to locate him alarmingly close to someone who tries to argue with you in the Facebook comments of the link to a Washington Post article that your aunt posted, he said that “tolerance is essential in a free society… Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case.”

It’s difficult to really anticipate how Kennedy might vote — or what a ruling might mean in this case — in part because the legal implications of what Phillips is trying to argue are as yet untried and unclear. To claim that the performance of waged labor, providing goods or services, is tantamount to artistic expression opens up some confusing cans of worms: to whom does that categorization apply? Phillips is the owner of his own business; how does this legal theory work in a more traditional employment scenario, or if one of the bakers Phillips employed were to refuse to bake a cake and he then fired them for it? Could a gay person working at an advertising agency, say, refuse to create a spot for an anti-LGBT politician? What if the refusal to “express a message” were rooted not in religious conviction, as Phillips says his is, but in personal values? As someone who knows really very little about constitutional law, it’s hard to imagine all the potential questions this opens up — or, as SCOTUSBlog writes quoting Justice Breyer, “how or whether the justices will draw a line that respects the religious beliefs of people like Phillips without opening up a Pandora’s box that… could ‘undermine every civil rights law since year 2.'” In an already extremely anti-regulation administration, the implications for that aspect of American industry are very worrying as well:

The implications of a ruling for Masterpiece, the state and the couple suggest, would be sweeping, far beyond the “countless businesses” such as hair salons, tailors, architects and florists that “use artistic skills when serving customers or clients.” They contend that a wide range of businesses could “claim a safe harbor from any commercial regulation simply by claiming that [they] believe[] complying with the law would send a message with which [they] disagree[].” Such an outcome, they conclude, would “eviscerate” the government’s ability, including through labor and health laws, to regulate all kinds of transactions.

This legal interpretation also presents an interesting wrinkle in the complicated, concerning narrative surrounding “free speech” and concentrations of social power and privilege in our modern age. In the same way that “religious freedom” has become the rallying dogwhistle of a certain far-right evangelical bloc, “freedom of speech” has become the code word du jour for a roiling, violent subset of the alt-right. It was argued vehemently that Milo Yiannopolous had to be allowed (and even paid) to out trans and undocumented students during speaking engagements because of free speech; that the violent white supremacist uprising in Charlottesville was the price of the value of free speech in a democracy. In those cases and in the cases often put forward by white supremacists and other bigots, the argument is generally that anything must be allowed to be said or free speech is being violated. It’s an interesting development that we’re now forced to seriously legally consider the question of whether bigots also need to be protected from being “forced” to make statements they don’t agree with. The legal implications of this are also fascinating and troubling — as a former educator, I think immediately of how a teacher’s legal right to “expression” might be weighed against a student’s right to a fair and accurate education on issues like evolution or sexuality. Is that a realistic concern? It’s impossible to tell, as these are largely uncharted waters; we won’t know much about those possibilities until we see the Supreme Court’s final ruling and its specific legal language.

A decision is expected in the case sometime this summer; the scope of what the court chooses to rule on specifically isn’t determined, and the potential consequences of the case will be impossible to really know until then. As with so much else right now, we’re in for a long period of uncertainty and murkiness


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Rachel is Autostraddle's Managing Editor and the editor who presides over news & politics coverage. Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy."

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9 Comments

  1. This case is really stressing me out (along with all the million other political things going on in the country).

    Everywhere I’m reading, people are saying they think Kennedy will side with the baker, although I personally feel his comments about Colorado’s “[intolerance] of his religious beliefs” seemed more of an opinion of the language and not so much of a lean toward a ruling in favor of the baker…

    …does anyone else see it the same way? I’d love to hear any other thoughts on this (especially if they’re positive).

  2. If the courts side with the cake baker, can we minority religions use this against republicans, racists, and anti-lgbtq people? Say put a sign that says; my religion is against people who are homophobic, racists, and anti-poor? Asking for my friend, myself.

    • I would think so. If you’re commissioned to paint a mural on a building that somebody else designed I’d think it totally someone else’s speech. Than the question because less a matter of your freedom of speech rights and more freedom of association rights, i.e. the right not participate.
      This might not even apply to creation of the expression. It could mean something like a truck driver refusing to deliver a billboard for display because he disapproves of the message.

      Of course, simply refusing services could still get you fired. It is interesting to find this case has tried to take the religious freedom factor out of the equation, since that’s been one of the few safe guards I’ve seen in discrimination cases since the Civil Rights movement.

  3. Thanks for this analysis, Rachel!
    I’ve been pretty fed up with queers who don’t seem to understand that you just can’t get a wedding cake from someone who isn’t a homophobe in many places where queers live, like small rural conservative towns, such as the town in which I was raised. Not everyone lives in a seemingly queer utopia like SF or Portland or wherever.

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