Masterpiece Theater

Jewish Light Editorial

While justices on the U.S. Supreme Court ponder whether a Colorado baker has the right to refuse to create a cake for a same-sex wedding, we thought we would present our view by altering one key section of the argument.

For those unfamiliar with the saga, some background:

When David Mullins and Charlie Craig were planning their wedding in Massachusetts, they went to Masterpiece Cakeshop in the Denver area to order a cake for their local reception. But the owner of the bakery, Jack Phillips, refused. He said that he is a Christian and that gay marriage violates his religious beliefs, so he would not design a custom cake for the same-sex couple.

Craig and Mullins didn’t accept that decision. They took their case to the Colorado Civil Rights Division, claiming that Phillips was violating state laws against discrimination by public accommodations — businesses that provide services to the public. The agency sided with the couple and further ruled that the baker had “no free speech right” to refuse the order from Mullins and Craig.

Beth Shalom Cemetery ad

The Colorado Civil Rights Commission affirmed that ruling, notifying Phillips that if he created cakes for opposite-sex weddings, he had to do the same for gay weddings. After a court upheld that decision, Phillips appealed to the U.S. Supreme Court, which heard arguments in the case earlier this month. 

To defend his decision, Phillips has claimed that the cakes he creates are his modes of expression, as artistic as works that are made with more traditional artistic media. The First Amendment guarantees his freedom to create such art as he wishes, he says, to the point of refusing to do so if the finished product would go against his religious beliefs.

On its surface, the Masterpiece Cakeshop case seems to be a basic clash between bedrock principles: anti-discrimination on the one hand, religious freedom on the other. But because Phillips framed the case in religious terms, try thinking about the case this way: Substitute  another word for “gay” in the arguments made by both sides.

Because Justice Anthony Kennedy appears to be in his typical spot as the swing vote, read these statements he made during oral arguments, edited to change the key word:

He asked whether a bakery could post a sign that read, “We do not bake cakes for Jewish weddings.”

When a lawyer for President Donald Trump’s administration, which is backing Phillips’ view, said that would be OK if the cakes were custom creations, Kennedy replied: “You would not think that an affront to the Jewish community?”

Kennedy openly worried that ruling in the baker’s favor could give legal cover to a variety of discriminatory situations, such as the hiring of photographers, florists, caterers, musicians or other wedding staples:

“It means there’s basically an ability to boycott Jewish marriages.”

The point is clear. Whether you’re talking about religion or race or age or national origin or sexual orientation, a ruling in Phillips’ favor would clearly give a green light to anyone who wants to claim beliefs that could exclude the clients in question. The baker’s claim that his pastries are artistic creations is a pretty weak point to support such a momentous change in discrimination law.

Of course, Kennedy’s vote is not a sure thing, based on other questions he asked during oral arguments. He was particularly strong in wondering whether the state was respectful and tolerant of Phillips’ religious beliefs. And he seemed to reject any interpretation that said Phillips objected to gay people in general as opposed to gay marriage specifically.

But a ruling in Phillips’ favor would clearly open a door that has been firmly, properly closed for a long time: Businesses may not discriminate against minorities. As Justice Stephen Breyer put it:

“The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law.”

Such a sea change should not rest on an assertion that baking a cake amounts to creating an artistic masterpiece that trumps all efforts to protect minorities. When Phillips’ lawyer tried to make that distinction, saying a baker’s work differs from that of a tailor or a chef, the response was immediate.

“Whoa,” Justice Elena Kagan said. “The baker is engaged in speech, but the chef is not engaged in speech?”

Added Justice Sonia Sotomayor:

“When have we ever given protection to a food?”

The court shouldn’t start doing so now.