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Mariana Mercado

Professor Klander

ENGL 1302

27 April 2018

Is This Pastry Speech?

The Supreme Court heard the arguments for the Masterpiece Cakeshop v. Colorado Civil

Rights Commission case on December 5, 2017. The case began when the owner of Masterpiece

Cakeshop, Jack Phillips, refused to bake a custom wedding cake for a gay couple, saying it

would be in violation of his religious beliefs. The couple took him to court for discrimination and

the Colorado Civil Rights Commission ruled in favor of the gay couple. Phillips then brought the

case to the Supreme Court. He argued that his refusal to use his artistic abilities to promote an

event that goes directly against his religious rights was not discrimination, because he was

boycotting the event not the people. He claimed that being forced to produce a piece of

“artwork” that could be taken as support of gay marriage was a violation of his freedom of

speech and religious conservations (Vogue). The arguments posed in favor of the bakery brought

to light the question of how far the Supreme Court will go to stand by the first amendment as

well as laws against discrimination. Although free speech is a fundamental concept of America,

the first amendment should not be used as justification for promoting discrimination of protected

classes and suppressing another fundamental concept of this country: equality.

The case of the Masterpiece Cakeshop tests two legislatures in its trial. The first is of

anti-discrimination laws. The Federal government does not acknowledge sexual orientation as a
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protect class against discrimination; however, the state of Colorado does. Being a mostly

democratic state, Colorado has much more extensive lists of protected classes in different

categories that were established in the Colorado Anti-Discrimination Act. Under all these lists,

including public accommodations, the laws prohibit discrimination based on sexual orientation

(Colorado Department of Regulatory Agencies). The second piece of legislature is the First

Amendment of the constitution. In the Masterpiece Cakeshop case, two rights of this five-part

amendment are pertinent: the freedom of religion and the freedom of speech. By extension, the

First Amendment protects an individual’s right to not be forced to preach a message they do not

agree with.

The main argument provided by Masterpiece Cakeshop – and those in support of it – is

that Phillips cannot be compelled to send a public message that violates religious beliefs

(Vogue). But although this is true, the first amendment is only applicable to forms of protected

speech. Protected speech has always had an unclear definition, and it is up to interpretation by

the Supreme Court on a case-by-case basis. In deliverance of this case, the court should not

declare baking or cakes to be a form of speech. Mary Bonauto, a lawyer from Hamilton College,

defines protected speech as having “a particular, discernible message, [that] is understood to be

the vendor’s speech.” (Bonauto). With this definition, cake can be ruled out to be a true form of

speech because from looking at a cake, one does not get a clear message of the baker making a

statement with his food.

Beyond the form of speech, the stance of the Masterpiece cakeshop depends upon the

freedom of religion granted by the first amendment. Philip, along with every other business
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owner and citizen in America, is guaranteed the freedom to exercise his religious beliefs and act

in accordance with his ideologies. Paired with the freedom of speech, the government cannot

force Phillips to alter his beliefs or make a statement that violates said beliefs. However,

Margaret Russell, a professor at the Santa Clara University School of Law, made the point that

“the state is not coercing him to change his beliefs or his expression” (Russell). Neither the

government nor the couple who asked to buy a cake were intending nor asking for Phillips to in

any way change his religious belief. A business deal is not a violation of a person’s freedom of

religion.

The implications of the court ruling in favor of the cakeshop are drastic. If the creation of

a cake was deemed artistic expression and a form of speech, doors would open for many more

forms of art and jobs to be allowed to become discriminatory based on religious beliefs. In the

arguments of the Masterpiece Cakeshop v Colorado Civil Rights Commission case, Justice

Kagan challenged Phillips’ attorney’s claim that cake is a form of speech because it is made with

skill and artistry. He said:

You have a view that a cake can be speech because it involves great skill and artistry.

And I guess I'm wondering, if that's the case, you know, how do you draw a line? How do

you decide, oh, of course, the chef and the baker are on one side, and you said, I think,

the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the

makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit

of clothes? Where does that come in? (Masterpiece Cakeshop v Colorado Civil Rights

Commission)
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Although Justice Kagan’s conclusions seem ridiculously farfetched and sarcastic, they are very

realistic concerns of what the outcome of this case will imply for future cases and discrimination.

Phillips was asked to create a cake for a gay couple’s wedding, not to write on that cake that he

supports gay marriage or any other message his religion wouldn’t agree with. If everything that

takes skill and artistry is labeled as speech, then it will become exceptionally easier for

companies and individuals to discriminate against groups based on ideas in their religion. To

emphasize the implications of this decision, Cole, a professor in law from Yale, made the point

that if they ruled in favor of the Cakeshop then it could open the doors for “A corporate

photography studio could refuse to take pictures of female CEOs if it believed that a woman's

place is in the home” (Masterpiece Cakeshop v Colorado Civil Rights Commission) and other

situations of obvious discriminatory nature. Yes, the rights of religions deserve protection as

does the rights of the LGBT community, but not the rights of cakes

Travis Weber, a law graduate and director of the Center for Religious Liberty at the

Family Research Council, argued that Phillips wasn’t discriminating based on sexual orientation

at all. He stated that the baker was merely opposing the event of a homosexual marriage,

claiming that Phillip would “create a cake for a wedding between a man and a woman despite

them identifying as homosexual” (Weber). He claims that for this reason, Phillips wasn’t acting

discriminatory at all. Additionally, when Phillips was initially asked to create a wedding cake for

a gay couple’s wedding, he declined but offered to serve them other goods not relating to

marriage. Despite this apparent lack of discriminatory intent, it fails to identify why Phillips

should be exempt from the having to provide the goods and services to customers equally.
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Historically, “Supreme Court precedent have emphasized that selective and discretionary

enforcement of civil rights laws is basically nonenforcement” (Russell). The Masterpiece

Cakeshop cannot provide equal services to its customers; refusing one good to a specific

demographic is synonymous with refusing all of its services.

“But who cares, right?” “Couldn’t the couple just find another baker?” Questions like

these plague this issue. This idea that the gay couple should have been the better persons and just

let the prejudice slide turns a blind eye to the problem at hand. The issue isn’t the cake, it is the

discrimination of a business on a minority group. Anti-discrimination efforts have made slow but

steady progress throughout the past decades, yet cases like this prove that there is still prejudice

and oppression in our society. Supreme Court cases are never simply about a single situation;

they determine the precedent for future cases to come. If the court determines that this

discrimination is tolerable, it paves the way for more prejudice and discrimination to flow

through our country. It is like letting a school bully off the hook because what he said, “wasn’t

even that bad.” Once we say one form of oppression is okay, it reinforces the notion in people’s

minds that they can be discriminatory because there aren’t legal repercussions.

The equality of the LGBT community is in a state similar to that of African Americans in

the mid twentieth century according to civil rights investigator, Dr. Glenda Shephard. When

interviewed on the case, she related it to the civil rights movement in the 1960s. She related the

passing of gay marriage to the Civil Rights Act of 1964. And that “It took several court cases

after the 1964 civil rights act was passed in order to make it clear that the courts were saying that
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discrimination of race in all forms was illegal.” (Shepherd) This is a sad but accurate truth.

Although gay marriage was a huge milestone for the LGBT community, it wasn’t the end of their

fight. It’s cases like the Masterpiece Cakeshop that determine the progress of gay rights like

Plessy v. Ferguson and many other cases were for African Americans. According to Dr.

Shepherd, the decisions of the Supreme Court are “dependent on the climate of the country”

(Shepherd), which is why cases on black civil rights turned in favor of equality as the people of

America became more progressive. Dr. Shepherd said, “Millennials are starting to rule a lot of

our thought processes… [and] I see the tides of this country changing, and I see sexual

orientation and gender identity becoming a federally protected class” (Shepherd). If not in this

case, in cases to come, the rights of the LGBT community will be validated like how those of

African Americans were.

Masterpiece Cakeshop v Colorado Civil Rights Commission is about much more than a

wedding cake, or any one thing. It is about the progress of LGBT and other oppressed

communities’ rights in America. The ruling of this case will be a momentous Court event for the

country. The owner of the cakeshop, Phillips, does have the freedom of speech and religion like

every other citizen in America, but he does not have the right to discriminate in his business. In

the progressive state of Colorado, sexual orientation is a protected class, therefore it is illegal for

any business owner to deny a couple service for their sexual preferences. His freedom of speech

only protects federally acknowledged forms of speech, of which cakes are not yet – and should

not – be included. The bottom line of the case is that Masterpiece Cakeshop is a business in a

capitalistic society; Phillips is to offer his services to the public despite their sexual orientation or
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other protected classes. For the sake of equality for minorities that would suffer more from lax

laws against prejudice in businesses, the Supreme Court should rule against the Masterpiece

Cakeshop.
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Works Cited

Bonauto, Mary L. “Symposium: Commercial Products as Speech – When a Cake Is Just a Cake.”

SCOTUSblog, 5 Apr. 2018, www.scotusblog.com/2017/09/symposium-commercial-

products-speech-cake-just-cake/.

“Civil Rights Cases We Handle.” Civil Rights Cases We Handle | Department of Regulatory

Agencies, Colorado Department of Regulatory Agencies,

www.colorado.gov/pacific/dora/civil-rights/cases-we-handle.

Annotation: Protected classes of Colorado

Masterpiece Cakeshop v Colorado Civil Rights Commission. Supreme Court. 5 Dec. 2017.

Supreme Court of the United States. Heritage Reporting Corporation, n.d.

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-

111_f314.pdf.

Russell, Margaret M. "It's Not about Baking a Cake, it's about Serving the Public." TCA News

Service, 29 Nov, 2017. SIRS Issues Researcher, https://sks.sirs.com.libaccess.hccs.edu.

Shepherd, Glenda. Phone Interview. 29 April 2018.

Vogue, Ariane de. “Supreme Court hears same-Sex marriage cake case.” CNN, Cable News

Network, 5 Dec. 2017, www.cnn.com/2017/12/05/politics/supreme-court-masterpiece-

cakeshop/index.html.

Weber, Travis. "LGBT Advocates Seek to Scuttle a Vital Constitutional Right." TCA News

Service, 29 Nov, 2017. SIRS Issues Researcher, https://sks.sirs.com.libaccess.hccs.edu.