The Colorado Supreme Court has ruled against a baker who refused to bake a cake for a same-sex wedding, arguing that baking a cake was an artistic act and that by forcing him to do so, he was being subjected to forced speech, thus violating his First Amendment rights. The court disagreed.
The Colorado Court of Appeals ruled that the owners of Masterpiece Cakeshop in Lakewood, Colorado, violated the state’s public-accommodations law when its owner, Jack Phillips, refused to make a cake for Charlie Craig and David Mullins, a gay couple who wanted to marry in 2012.
The baker argued that baking a cake is a form of speech that he was being compelled to make.
“Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages,” the court wrote in its decision.
This question of what constitutes ‘speech’ is an important one because restricting a person’s right to speak or forcing them to say something they do not want raise serious First Amendment considerations.
Under the law, there’s an important distinction between refusing to provide a service and refusing to “say” something. As Doug NeJaime, a UCLA law professor, put it to me in July, “It’s the difference between not providing service because the person’s gay and not doing something in particular because it’s particular speech.” This has been an important factor in other, similar cases, so it’s significant that the Colorado court rejected the idea that cake-baking is primarily a form of artistic expression and speech.
The idea that one ‘honors god’ through the mundane things one does in life can, if taken seriously, result in pretty much refusing to provide any services to gay people. The court was not buying it.
“The act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings,” the justices wrote. “To the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”
Right. When I go to a wedding and eat a piece of cake, I do not think, “it is so great that the baker is celebrating the wedding with us.” To the extent that I think of the baker at all, it is to note if the cake is so good that I may seek their business or so bad that I want to avoid them.
The court said that the baker also violated Colorado’s public accommodations law that forbids discrimination on the basis of sexual orientation in housing, employment, and the like.