SANTA CLARA, Calif. — “It’s not just about the cake.” If there is one point on which the parties in the Masterpiece Bakeshop appeal can agree, it is that baker Jack C. Phillips’ refusal to take a wedding cake order from Charlie Craig and David Mullins engendered concerns far beyond the culinary.
The baker made clear his religious objection to same-sex unions; in fact, he had once declined to sell cupcakes to a lesbian couple for a commitment ceremony.
Craig and Mullins filed a complaint with the state civil rights commission under its public accommodations law, the Colorado Anti-Discrimination Act.
The act prohibits businesses such as the Masterpiece Bakeshop from discriminating against their customers on the basis of multiple categories: “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
The act aims to protect “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”
The Colorado Civil Rights Commission ruled that Phillips’s denial of the couple’s request was discrimination on the basis of sexual orientation.
Phillips and the Masterpiece Bakeshop appealed unsuccessfully to the Colorado Supreme Court, arguing that his rights to freedom of speech and religion should require an exemption from the act’s reach.
On Dec. 5, the U.S. Supreme Court will hear arguments in this high-profile case. The court should rule against Phillips and the Masterpiece Bakeshop. Here are a few thoughts about why the free speech and religion claims fail to persuade based on these facts.
First, it is helpful to take a close look at the language above from the Colorado law, for it is structured in a way quite similar to public accommodations laws on both the federal and state levels.
The concept of public accommodations laws emerged over a half-century ago to address pervasive and degrading exclusion on the basis of race and ethnicity; their purpose is to require fair treatment by entities that hold themselves out to the public for business.
These laws are not identical in their protections; for example, many states omit disability, age and sexual orientation from specific coverage.
However, when a state law such as Colorado’s specifies that businesses may not discriminate on the basis of sexual orientation, that law is underscoring the compelling nature of the government’s interest in forbidding biased conduct.
The Colorado commission and state Supreme Court held that refusing to provide a wedding cake to a couple based on their same-sex marital choice is indeed biased conduct prohibited by state law.
Second, while it is true that Phillips is as entitled to freedom of speech and religion as any of us, he fails to explain why this conduct-based civil rights law should allow individuals to create an exception for themselves in providing “goods, services, facilities…” on an equal basis to their customers.
Phillips is still free to speak his mind and exercise his religious beliefs; the state is not coercing him to change his beliefs or his expression.
Moreover, this is not a case in which Phillips was compelled or even asked to provide a message or endorsement of same-sex marriage. Commercially sold wedding cakes, however artistically designed or expressively baked, are not generally assumed to convey religious or other approval of a couple. If that were the case, the wedding cake industry might drop precipitously.
Phillips contends that his position is not discriminatory because he is willing to provide other goods to his LGBT customers, just not their wedding cakes. But civil rights history and Supreme Court precedent have emphasized that selective and discretionary enforcement of civil rights laws is basically nonenforcement.
Finally, to those who are wondering, “It’s just a cake. Why would you want someone who is against same-sex marriage to make an LGBT couple’s wedding cake?” – I reiterate the point on which both sides agree: “It’s not just about the cake.”
Margaret M. Russell has been a member of the Santa Clara University School of Law faculty since 1990, and is affiliated with the University’s Center for Social Justice & Public Service, the Markkula Center for Applied Ethics, and the Center for Multicultural Learning. Readers may write her at Santa Clara Law, 500 El Camino Real, Santa Clara, CA 95053.