What's at Stake in the Supreme Court's Take on Gay Wedding Cakes?

We talked to a constitutional lawyer, who said the case's implications could potentially be as broad for LGBTQ people as marriage equality—all thanks to a goddamn cake.
June 29, 2017, 2:35pm
Public domain photo, edited by the author

On Monday, the US Supreme Court announced that it will hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. It concerns a 2012 incident in which a Colorado baker named Jack Phillips refused to make a wedding cake for an engaged gay couple, David Mullins and Charlie Craig. Phillips's argument is that his religious objection to same-sex marriage constitutes a First Amendment right to refuse to "express himself" (via cake).


In most states, this sort of thing would never get flagged as illegal, but Colorado has legislation on the books protecting LGBTQ customers from being turned away from businesses that are considered "public accommodations." In 2014, the Colorado Civil Rights Commission determined that turning away Mullins and Craig's business was illegal discrimination, and by implication, that baking someone a cake is a public accommodation.

In short: You're making cake here, and if you object to the context in which the cake is going to be consumed, too bad, pal.

But now, according to the venerable SCOTUS Blog, the highest court in the land has to figure out "whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment." In other words, do you have a First Amendment right to skate around laws that protect a class of people because of your religious objection?

To understand the case a little better, I talked to Carl W. Tobias, professor of constitutional law at the University of Richmond. He told me he was "wrestling" with the implications of the court's possible decision. Our conversation has been lightly edited for clarity.

VICE: On what basis can you have a religious objection to how a cake is used?
Carl W. Tobias: I think the baker would argue that his religious freedom is being violated, but I think the same-sex couple who want to be married are arguing, You're discriminating against us. So I think that's the problem.


What will we learn about "public accommodations" if the court rules against the baker?
The highest court in the land would be saying, This is a form of discrimination.

To be honest, I'm struggling to understand how it's not already a clear-cut case of discrimination. Can you help?
I think it is not a clear area of the law. We know from the civil rights acts of the 60s that you can't discriminate in a restaurant or a hotel, or something like that. It's a public accommodation. Here, I think the argument from the baker would be, These are my religious convictions. I'm a private business. This is not a public accommodation. It's further complicated because not every state considers this to be discrimination. Colorado [has] a statute. Most states do not.

So the Supreme Court could well just be saying, This is discrimination in the state of Colorado.
Yep. And in other states that have similar statutes. That's one way they could decide. They could rule more broadly. I don't think this court would, but it might.

Could the decision be so broad that it would mean turning gay couples away at cake shops is illegal everywhere in the country?
Given what I saw on Monday from some members of the court, I think that's unlikely here. On the other hand, it's possible. Justice Kennedy could write an opinion that's as broad in its reach as Obergefell was a couple years ago, possibly. The other side is the argument from religious freedom. A number of states have legislation that protects people in that situation. So it's a difficult issue to resolve.

How has the Supreme Court dealt with cases involving religious objections in the past?
I think even more helpful cases are the ones involving contraception. One of my colleagues represented Little Sisters of the Poor, and I have somewhat more sympathy I think for them, even though it was equally attenuating. Under the [Affordable Care Act], employees had to provide birth control. These are a Catholic order, and they felt as a matter of conscience that it would be a sin if they did it, even though all they're doing is signing a piece of paper for the employees' contraception. Maybe that's a tougher issue. [The Little Sisters of the Poor case was punted to a lower court, and they were essentially given a pass to keep doing what they were doing.]

If the court sides with the baker, would that mean you could put up a sign that said "wedding cakes for straights only"?
Oh, I don't know. I rebel at that idea. I don't like it. I'm wrestling with it.

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