Let Them Eat Cake

By Joseph Jones


When I was younger, I fantasized about having a dream wedding, complete with an extraordinary venue, beautiful flowers, wonderful music, all our loved ones gather together, and of course, a towering, marble cake.  For many Lesbian and Gay kids, coming of age in a time where it wasn’t easy to come out and where marriage equality had yet to become the law of the land, the likelihood of this fantasy coming to fruition seemed slim to none.

When the U.S. Supreme Court ruled in 2015 that bans on same-sex marriage were unconstitutional, effectively legalizing same-sex marriage across the country, millions of same-sex couples were granted full access to an institution that had been, for s long a privilege, and not a right, based solely on prejudice and discrimination.  The ruling also gave credence gay and lesbian individuals who thought they would never have their rights recognized, and now could feel more hopeful about their status as a citizen and as a minority. The result was a precedence of greater equality under the law.

This question of equality, individual freedoms, and the definition of discrimination is still being decided all over the world.  Recently, Australia’s Parliament passed a bill officially changing the definition of marriage from a man and a woman to, “a union of two people”, permitting same-sex couples to wed.  However, another historic decision is about to be made which will affect the lives and well-being of LGBTQ people, and could undermine the ability for same-sex couples to be treated equally under the law.

In July of 2012, David Mullins and Charlie Craig entered Masterpiece Cakeshop in Lakewood, Colorado, hoping to find the perfect cake for their wedding reception, with the actual service to be set in Massachusetts.  The couple met with the owner, Jack Phillips, to make the arrangements for a custom-made wedding cake, and were horrified, embarrassed, and hurt when Phillips refused.  Phillips’ basis for denying Mullins and Craig service was that he did not feel comfortable using his artistic talents by making a cake for an event which conflicts with his religious beliefs.

After they were turned away by Phillips, Mullins and Craig filed a complaint with the Colorado Civil Rights Division claiming the baker violated the state’s Anti-Discrimination Act, which prohibits public accommodations from refusing service based on characteristics such as race, religion, or sexual orientation.  The Colorado Civil Rights Commission ruled in favor of the couple, and on August 13th, 2015, the Colorado Court of Appeals unanimously affirmed that act after determining the bakery discriminated on the basis of sexual orientation.  The court also concluded the baker’s right to freedom of speech or free exercise of religion was not infringed by the Anti-Discrimination Act.  After the Colorado Supreme Court denied review of the case, the U.S. Supreme Court agreed to hear the case, with oral arguments beginning on December 5th.

Representing Phillips, Kristen Waggoner stated in her oral argument, “the First Amendment prohibits the government from forcing people to express messages that violate religious convictions.  Yet the commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions.”  Justice Ginsburg questioned whether a pre-made cake would also be considered an endorsement of same-sex marriage by the baker.  The lawyer retorted “the compelled speech doctrine is triggered by compelled speech.  And in the context of a pre-made cake, that is not compelled speech.”  Essentially, Waggoner’s defense is, crafting a new cake for the purpose of celebrating a same-sex union would be a breach of his principles and his First Amendment rights, but a cake which had already been made under a different context would be different. “In the context of it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed.  He intended to speak through that cake with the purpose of whatever it was when he created it.”  

The more liberal judges expressed concern that a ruling in favor of Phillips would allow other people such as tailors, hair stylists, makeup artists, chefs, and architects to refuse to use their talents in a statement of admonishment against same-sex marriage.  This highlights the fundamental issue in this case; of what the ramifications could be in ruling in favor of religious liberty and possibly paving the way for businesses to refuse service to someone based on their race, religion, sexual orientation or gender identity citing the  religious conviction that person holds.  Although some may see the refusal as discrimination, Phillips defended himself by telling CNN, “to turn away somebody because of their sexual orientation, that would be discrimination.  To turn away an event, an opportunity to create a cake for an event, is not discrimination.”

On the issue of discrimination, the judges questioned whether the baker would be justified in refusing to make a cake for an interracial marriage. Solicitor General Noel Francisco, the Trump administration lawyer, said it would be harder to justify because, “race is particularly unique.”  In his oral argument on behalf of the Mullins and Craig, David Cole, sharply criticized this dissimilarity saying, “they suggest that you draw a distinction between race discrimination and sexual orientation discrimination and the state's ability to protect it. But to do that would be to constitutionally relegate gay and lesbian people to second class status, even when a state has chosen, as Colorado has done here, to extend them equal treatment.”

As expected, an ideological chasm divided the court, further complicating the case, with the liberal justices perturbed by the possibility of other forms of discrimination given the judicial seal of approval, as Justice Stephen Breyer expressed in his opinion.  “The reason we’re asking these questions, is because obviously we want some kind of distinction that will not undermine every civil rights law.”  

For some of the judges, there seemed to be case for concern over the rights of Phillips, not just Mullins and Craig.  Justice Kenney cited principle when saying, “tolerance is essential in a free society.  And tolerance is most meaningful when it’s mutual.  It seems to me that the state has been neither tolerant nor respectful of Mr. Phillip’s religious beliefs.”  Kennedy also expressed being unsettled with Phillip’s having to retrain his workers, and then later seemed to defend Phillip’s and invoking the “hate the sin, love the sinner” mantra by saying Phillip’s does not take grievance with the couple for being gay and,“it’s not their identity, it’s what they’re doing.”

This case in 2017 has undertones of a case the Supreme Court heard in 1968 of two people of color denied service at a barbeque joint called Piggie Park in South Carolina.  The owner of the establishment, Maurice Bessinger warranted turning away black customers based on his religious belief opposing "any integration of the races whatsoever." U.S. District Judge Charles Earl Simons Jr. wrote in 1966. "Undoubtedly, defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens,"  The Supreme Court ruled in favor of the customers, calling the religious freedom argument and Bessinger's other defenses "patently frivolous."

Civil rights attorney’s paint a picture of similarity between these two controversial cases in a Supreme Court brief written by NAACP Legal Defense and Educational which said, "The logic of Piggie Park and other precedents overwhelmingly rejecting religious justifications for racial discrimination apply squarely to the context of LGBTQ discrimination.”  If the Supreme Court cites this piece of litigation in their decision, it is more than likely they will be ruling in favor of Mullins and Craig, and slamming, and locking the door on religious liberty from creeping into the realm of public accommodation, preventing shop owners and businesses from using their religion as a weapon to defend their prejudices and inflict discrimination and oppression upon those who attempt to do business with them.

Some people might be struggling to fathom the significance of this case, reasoning, “why don’t they just go to another shop that will sell to them?”  This logic skirts around the larger societal issues surrounding this case and the implications of whatever conclusion the court will come to.  If the court rules in favor of Mullins and Craig, religious liberty will no longer be an acceptable excuse for blatant use of discrimination.  But, if the court rules in favor of Phillips freedom of religion could be used in some manner to discriminate against not just LGBTQ people, but also Muslims, Jews, Hindus, Mexicans, other minorities, women etc.; as long as there can be a religious rationalization applied.  

Protection against discrimination is essential in preserving the freedoms and maintaining the well-being of a minority population that is subjected daily to adversity in the forms of harassment, intolerance, violence, and broiled with feelings of self-loathing caused by the belief they do not, and will never be, accepted as an equal member of society.  A ruling in favor of the same-sex couple would affirm to LGBTQ people, and all other marginalized and minority groups, their civil liberties will be upheld and fortified from those who try to make transgressions against them.   In a time of uncertainty caused by political upheaval and an administration which seems to not have their best interest at heart, a win for the LGBTQ people is needed more than ever.  To borrow a translated phrase commonly misattributed to Marie Antoinette, “Let them eat cake!”