High Court debates wedding cakes and forced expression

“On the Left, some pine for a hard-line opinion that claims of religious liberty or free speech can never, ever provide an excuse for discrimination. But it’s not just the Alitos and Clarence Thomases who would oppose that outcome. All four liberal justices yesterday gave indications that even if they would not draw the line on compelled speech *here*, they would draw it *somewhere*.” My take on yesterday’s oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is up at the New York Daily News.

The principles of free contract and association and the wrongness of compelled expression and participation will endure whether or not SCOTUS sees its way clear to recognizing them in this case. Earlier; Roger Pilon (“If there is intolerance here, it is from those who would force a man to choose between his religious beliefs and his livelihood”); Ilya Shapiro; Cato’s brief; Erica Goldberg. And I’m quoted in Brandon Ambrosino’s Washington Post coverage of the case (“the lasting influence is not primarily which side wins, but where to draw the line between what is and is not expression”) and by Chris Johnson in the Washington Blade (““Neither side [on the Court] wants to inflict a culture war on the country; they’re trying to work out something without culture war.”)


  • The thing that is remarkable about this case is that the Colorado commission appears to have been more solicitous of those who refused to add a Bible verse. When you have bureaucrats drawing lines like that, freedom is lost.

  • My guess for the left is their normal abandonment of traditional American values. They wouldn’t probably damage themselves trying to jump on board if an Islamic baker was suing not to put Mohammed on a cake.

    • Strange that nobody has tried that. Or maybe there are no Muslim bakers in Colorado.

    • Well no, they probably wouldn’t, because that analogy is flawed. “People who want Mohammed on a cake” is not a protected class. The issue in Masterpiece Cakeshop is that the baker refused to bake a cake because of the identity of the people buying it, not because they wanted a particular message put on it. The baker sold the same wedding cakes to straight couples, but refused to sell to a gay couple. That’s a very different situation than refusing to put a particular image or message on a cake.

      It’s unclear to me why the issue in Masterpiece Cakeshop is any different than a baker who refuses to bake a cake for an interracial wedding. Maybe you think the baker should have the absolute right to choose his customers, or maybe you think that should be tempered by civil rights law, but I don’t see why this is any more complicated.

      • “because of the identity of the people buying it”

        This was very much in controversy at oral argument, the defendants arguing that Phillips had made clear he was happy to serve Craig and Mullins cakes of any other forms and occasions, but not one in celebration of their wedding. The plaintiffs insisted that this amounted in practice to discrimination based on identity while the defense pointed out that Phillips would also have turned down a similar request made by, say, straight customers intent on celebrating a gay wedding (maybe through a surprise cake donation, or one in vicarious celebration of a distant wedding they couldn’t attend in person, etc.)

      • It’s unclear, because of the nature of wedding cakes,

        1. Many wedding cakes have bride(female) and groom(male) figures on the top of the cake. If you want two grooms or two brides, that is NOT the same cake that would be sold no a straight couple.

        2 No one mass produces wedding cakes to sell “off the shelf”.
        They are either:

        2a Made to order from a catalog of standard designs available from that baker.

        2b One off custom art pieces.

        In my opinion, 2a probably should be subject to public accommodations laws, but 2b definitely should not be.

        3. Many wedding cakes are delivered directly to the reception site and setup by the baker. This requires some level of participation in the event by the baker. You say “the baker refused to bake a cake because of the identity” it’s also possible to argue that he refused because of the type of event that the cake was for rather than the identity of the clients.

      • But if I was placing the order, I am a protected class. Maybe I want him on the cake so that I can “feel” what he is supposed to have looked like… Devil’s advocate, don’t yell at me. What I am pointing out is that we all have ox’s that can be gored by some protected class out there if they just work at it a bit…

  • Why does this have to be about either speech or religion? When William F. Buckley said that the defining characteristic of slavery is the inability to withhold one’s services, was he not identifying a still more fundamental aspect?

  • Perhaps someone can find a citation but I seem to recall the ACLU arguing in a case that topless dancing was protected by the First Amendment. Not quite sure I understand why the writing on a cake would be less protected in their eyes.

  • This may be incorrect, but on one of the daily arguments about this it was mentioned that at the time Gay marriage was not legal in CO. As a non-lawyer type, to me that would be relevant. How can the state force someone to do something that the state did not recognize?

    • Fyi, CJ Roberts brought that up, discussing beginning on page 64 of the transcript.

  • Steve Crowder tried the whole gay wedding cake in a Muslim bakery thing a couple years ago.

    He didn’t sue anybody, because he supports the idea that a merchant can turn down such business.


  • That’s what happened with the New Mexico photographer a few years back: Asked to do a gay wedding, the photography turned them down and the gay couple hauled her up before the state Human Rights Commission, which found in the couples favor—despite the fact New Mexico at the time had not legalized gay marriage nor even had a civil union law.