Is a Wedding Cake Free Speech? Or Is That Even The Question?

On Tuesday, Dec. 5, 2017 the U.S. Supreme Court heard oral arguments on the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

In 2012, back when marriage equality was yet to be the law of the land in the U.S., same-sex couple Charlie Craig and David Mullins traveled from Colorado to Massachusetts where they could legally be wed.  They then returned to Denver where they planned on having a reception.

The couple went to Masterpiece Cakeshop to order a fancy cake.  But as soon as baker Jack C. Phillips realized he was being asked to make a cake for a gay couple, he told them his Christian faith would not allow him to do so.  He would happily sell them a birthday or graduation cake, but not a wedding cake.

Although Colorado did not yet have same-sex marriage, the state did have a public accommodations law that prohibited discriminating based on race, gender, religion and sexual orientation.

Phillips made a First Amendment argument that he was not discriminating against Craig and Mullins based on sexual orientation; instead, he was refusing to engage in speech by making a decorated cake that went against his religious values.

The Colorado Civil Rights Commission argued that making a cake for a customer was not an endorsement of the event the cake would be used at.

This case has generated an enormous number of opinion pieces making many arguments from many points of view.  Here are several that take on the case with a  range of approaches.  Do not take my listing of these as an endorsement of any of them.  I’m just trying to show how different people can address the same issue.

The basic news story:

And now the opinion pieces:

  • A cake is food, not speech. But why bully the baker?
    By George F. Will, Washington Post opinion writer
    “Denver has many bakers who, not having Phillips’s scruples, would have unhesitatingly supplied the cake they desired. So, it was not necessary for Craig’s and Mullins’s satisfaction as consumers to submit Phillips to government coercion. Evidently, however, it was necessary for their satisfaction as asserters of their rights as a same-sex couple.”
  • The Supreme Court cake case has an easy answer
    By Dana Milbank, Washington Post opinion writer
    “Piece of cake: If you can’t do it to racial and religious minorities, women and the disabled, you shouldn’t be able to do it to gay people.”
  • There will be no winners in the Supreme Court’s wedding cake case
    By Greg Weiner, associate professor of political science at Assumption College
    “In Masterpiece Cakeshop , LGBT advocates can hope for a pyrrhic victory at best. Conscientious objectors to same-sex weddings may be pressed into service, but only at the long-range cost of intensifying their opposition. A vindication of religious liberty, meanwhile, would tarnish that value, however unfairly, with the taint of discrimination.
  • The Supreme Court wedding cake case isn’t about cake at all
    By Nathaniel Frank, director of the public policy research portal What We Know
    “The reason is that the Constitution guarantees a right to equal dignity, and turning people away from public accommodations — or slicing up the public by granting individuals a license to “opt out” of the public weal — denies people that dignity. No constitutional right is entirely unrestricted, but in deciding the balance between First Amendment and equal protection claims, the courts have already distinguished between the right to hold or espouse a belief — considered “absolute” — and the right to act on it with impunity. The ‘free exercise of one’s belief,’ the courts have said, is ‘subject to regulation when religious acts require accommodation to a society.'”
  • The Supreme Court must protect a baker’s unpopular speech
    Marc A. Thiessen, Washington Post opinion writer
    Even if you disagree with Phillips, you have an interest in seeing him prevail. The First Amendment protects unpopular speech. Speaking out in favor of same-sex marriage was once unpopular. And views that are popular today may be unpopular in the future. To maintain a free society, we must have the freedom to disagree — and tolerance for those who disagree with us.

And finally…

  • Let Us Buy Cake
    By R. Eric Thomas, playwright and staff writer at
    “I ventured up to the third floor and found a table with a surfeit of cake options, but no labels. “Do you think one of these is lemon?” a woman next to me asked. I turned to her: “There’s only one way to find out.”

    She replied, “Eat them all?” My soul mate.

    She asked me if I was enjoying myself. I shrugged. “Apparently, you’re invisible without a bride,” I said.

    She told me she understood. She wore scrubs, with her hair tied back, a marked difference from the party-casual dress of many other attendees. She explained that she was a vet and had accidentally left her engagement ring at work. Grabbing two more slices of cake, we wandered away from the table.”


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