On page 6-9, about two different cases in which the bakers (Jack Philips of Masterpiece Bakery and Marjorie Silva of Azucar Bakery), Corvino argues that one ma

6/10/22, 3:18 PM Opinion | Drawing a Line in the ‘Gay Wedding Cake’ Case – The New York Times

https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html?fbclid=IwAR0vgq2V6_cjZvsIl0YfGAn0QP4JxiPjJ_R14RG-thNJ4QWOiuq0DJNWjDA 1/2

THE STONE

By John Corvino

Nov. 27, 2017

At first glance, the Masterpiece Cakeshop case — for which the United States Supreme Court will hear arguments on Dec. 5 — looks easy. In 2012 Charlie Craig and David Mullins attempted to buy a wedding cake at Masterpiece Cakeshop in Lakewood, Colo. The owner, an evangelical Christian named Jack Phillips, refused to sell them one. The Colorado Civil Rights Commission found Phillips liable for sexual-orientation discrimination, which is prohibited by the state’s public accommodations law. State courts have upheld the commission’s decision.

The reason the nation’s high court is giving the case a second glance is Phillips’s First Amendment claim that he was not, in fact, discriminating on the basis of sexual orientation, but on the basis of a particular message: endorsement of same-sex marriage. Phillips made it clear to the gay couple that he would happily sell them other items: birthday cakes, cookies, and so on. He welcomes LGBT customers; he is simply unwilling to use his artistic talents in the service of a message that he deems immoral.

One might better appreciate Phillips’s position by considering a second case. In 2014, not long after the commission announced its Masterpiece decision, William Jack attempted to buy a cake at Azucar Bakery in Denver, Colo. Specifically, he requested a Bible-shaped cake decorated with an image of two grooms covered by a red X, plus the words “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” The owner, Marjorie Silva, refused to create such an image or message, which conflicts with her moral beliefs. She did, however, offer to sell him a Bible-shaped cake and provide an icing bag so that he could decorate it as he saw fit. The customer filed a complaint alleging religious discrimination, which is also prohibited by Colorado’s public accommodations law. But the commission disagreed, arguing that Silva’s refusal was based not on the customer’s religion, but on the cake’s particular message.

Jack Phillips’s supporters have been crying foul since. If the First Amendment protects Marjorie Silva’s right not to condemn same-sex relationships, they argue, then it protects Jack Phillips’s right not to celebrate them. But there is a key difference between the cases, and the difference points to a useful line-drawing principle.

Put aside the plausible objection that treating cakes as speech — especially cakes without writing, as in the Masterpiece case — abuses the First Amendment. And put aside the even more plausible objection that whatever “speech” is involved is clearly that of the customers, not of the baker: As law professors Dale Carpenter and Eugene Volokh explain in a Masterpiece brief, “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.’ ” After all, that objection is arguably just as applicable to the Bible-cake case.

Finally, put aside the objection that “It’s just cake!” That could be said to any of the parties in these disputes, and it doesn’t alter the deeper rationale for anti-discrimination laws, which are about ensuring equal access in the public sphere — not just for cakes, flowers, and frills, but for a wide range of vital goods and services.

It is tempting to describe Marjorie Silva’s Bible-cake refusal as the moral mirror-image of Jack Phillips’s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.

But that’s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business.

Therein lies the crucial difference between the cases: Silva’s objection was about what she sold; a design-based objection. Phillips’s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple’s commitment ceremony.

Drawing a Line in the ‘Gay Wedding Cake’ Case

6/10/22, 3:18 PM Opinion | Drawing a Line in the ‘Gay Wedding Cake’ Case – The New York Times

https://www.nytimes.com/2017/11/27/opinion/gay-wedding-cake.html?fbclid=IwAR0vgq2V6_cjZvsIl0YfGAn0QP4JxiPjJ_R14RG-thNJ4QWOiuq0DJNWjDA 2/2

Business owners generally have wide discretion over what they do and do not sell: A vegan bakery needn’t sell real buttercream cakes. A kosher bakery needn’t sell cakes topped with candied bacon, or in the shape of crosses. By contrast, business owners generally do not have discretion over how their products are later used: A kosher bakery may not refuse to sell bread to non-Jews, who might use it for ham-and-cheese sandwiches.

(Of course, there are times when the buyer’s identity or the intended use is legally relevant. It is permitted — indeed, required — to refuse alcohol to minors, or torches to someone who announces that he is about to commit arson. But that legal concern does not apply here.)

In his defense, Phillips has pointed out that he refuses to sell Halloween cakes or demon-themed cakes; he analogizes these refusals to his unwillingness to sell gay wedding cakes. In other words, he maintains that his turning away the gay couple was about what was requested, not who was requesting it.

The problem with this retort is that “gay wedding cakes” are not a thing. Same-sex couples order their cakes from the same catalogs as everyone else, with the same options for size, shape, icing, filling, and so on. Although Phillips’s cakes are undeniably quite artistic, he did not reject a particular design option, such as a topper with two grooms — in which case, his First Amendment argument would be more compelling. Instead, he flatly told Craig and Mullins that he would not sell them a wedding cake.

Imagine a fabric shop owner who makes artistic silk-screened fabrics. It would be one thing if she declined to create a particular pattern, perhaps because she found it obscene. It would be quite another if she offered that pattern to some customers, but wouldn’t sell it to Muslims who intend it for hijabs. The Bible-cake case is like the first, design-based refusal; the Masterpiece case is like the second, user-based one.

Or imagine a winemaker. It would be one thing if she declined to produce a special blend. It would be another if she offered that blend, but refused to sell it to Catholic priests who intended it for sacramental use. The latter would run afoul of Colorado’s public accommodations law, which prohibits religious discrimination.

But wait: Isn’t there a difference between discrimination that’s user-based and discrimination that’s use-based? The winemaker in our example is not refusing to sell wine to Catholics, or even to priests; she is merely refusing to sell the wine for a particular purpose. Same with the fabric-store owner, who might happily sell to Muslims making curtains. In a similar vein, Jack Phillips is explicitly willing to sell LGBT people a wide range of baked goods, as long as they are not to be used for same- sex weddings.

This kind of sophistry has been rejected by the Court before. As the late Justice Scalia once wrote, “A tax on wearing yarmulkes is a tax on Jews.” Some activities are so fundamental to certain identities that discrimination according to one is effectively discrimination according to the other. That’s certainly true of wearing hijabs and religion, or celebrating mass and religion; likewise of same-sex weddings and sexual orientation. In such cases, use-based discrimination and user-based discrimination amount to the same thing.

But couldn’t one argue in the Bible-cake case that a commitment to a traditional Biblical understanding of sexuality is similarly fundamental to William Jack’s identity? Of course. But it doesn’t follow that Marjorie Silva, the baker in that case, must alter what she sells in order to help him express that identity. While Jack Phillips, the Masterpiece baker, is akin to the winemaker who won’t sell wine for mass, Silva is more like one who sells wine to all customers, but declines to put crosses on the labels. Again, her refusal is design-based, not identity-based or use-based. Unlike Phillips, she is willing to sell this customer the same items she sells to any other customer.

We’ve seen Jack Phillips’s First Amendment argument before. Back in 1964, when Maurice Bessinger of Piggie Park BBQ fought public accommodations laws that required him to serve black customers equally, he invoked his rights to freedom of speech and freedom of religion. Bessinger noted that he was happy to sell black customers takeout food; he simply did not want to be complicit in what he saw as the evil of integrated dining. The Supreme Court unanimously rejected this argument.

The details of the current cases are different, as is the social context. As I’ve argued before at the Stone, it’s a mistake to treat sexual-orientation discrimination as exactly like racial discrimination — just as it’s a mistake to treat it as entirely dissimilar. But the underlying principle from Piggie Park holds in the case at hand: Freedom of speech and freedom of religion do not exempt business owners from public accommodations laws, which require them to serve customers equally. The Court should uphold the commission’s decision and rule against Phillips.

University of Arkansas Press

“The Kind of Cake, Not the Kind of Customer”

Author(s): John Corvino

Source: Philosophical Topics , FALL 2018, Vol. 46, No. 2, Gendered Oppression and its Intersections (FALL 2018), pp. 1-20

Published by: University of Arkansas Press

Stable URL: https://www.jstor.org/stable/10.2307/26927948

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected] Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms

University of Arkansas Press is collaborating with JSTOR to digitize, preserve and extend access to Philosophical Topics

This content downloaded from ������������128.119.168.112 on Thu, 09 Jun 2022 18:40:55 UTC������������

All use subject to https://about.jstor.org/terms

1

philosophical topics vol. 46, no. 2, Fall 2018

“The Kind of Cake, Not the Kind of Customer”: Masterpiece, Sexual- Orientation Discrimination, and the Metaphysics of Cakes

John Corvino Wayne State University

ABSTRACT. In June 2018 the Supreme Court of the United States decided the case of Masterpiece Cakeshop, in which baker Jack Phillips refused to provide a cake for a same- sex wedding. The Court decided the case on fairly narrow grounds; in particular, it set aside the question of whether Phillips illegally discriminated on the basis of sexual orientation by refusing to sell the same cake to a gay couple that he would sell to a heterosexual couple. Concurring opinions by Justices Kagan and Gorsuch do address that question, however, and in this paper I explore the debate between them. By distinguishing between design- based and use- based refusals of service and then arguing that some use- based refusals are tan- tamount to discrimination on the basis of protected traits, I argue that Jack Phillips did indeed discriminate on the basis of sexual orientation. I also argue that another baker, who refused to create a “Leviticus 18:22 ‘Homosexuality is a detestable sin’ ” cake, did not discriminate on the basis of religion. I thus side with Justice Kagan against Justice Gorsuch on the question of whether the Colorado commission treated the two bakers inconsistently.

This content downloaded from ������������128.119.168.112 on Thu, 09 Jun 2022 18:40:55 UTC������������

All use subject to https://about.jstor.org/terms

2

In 2012 Charlie Craig and David Mullins visited Masterpiece Cakeshop in Lakewood, Colorado, to order a cake for their wedding reception. Same- sex marriage was not yet legal in Colorado; the couple would marry in Massachusetts and then return home to celebrate with family and friends. While perusing an album of cake photos, they were greeted by the owner, baker Jack Phillips. When they told him why they were there, he explained that he could not create a cake for a same- sex wedding because doing so would violate his religious beliefs. He added that he was willing to sell them other items in the store, such as birthday cakes. The couple left without discussing further details of the cake. The entire interaction took no more than several minutes. Craig and Mullins subsequently filed a complaint with the Colorado Civil Rights Commission. The Colorado Anti- Discrimination Act (CADA) states that:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .1

The commission found Phillips liable for sexual- orientation discrimination under CADA. The Colorado Court of Appeals affirmed the commission’s judgment. The case then worked its way up to the US Supreme Court, which issued a decision in June 2018. Most observers had expected that the Court’s decision would hinge on the baker’s free- speech rights, and specifically, whether those rights exempted him from the requirement to give same- sex couples “the full and equal enjoyment” of his bakery’s services by selling them a wedding cake. But those observers were wrong. In a surprising 7–2 decision, the Court set aside the free- speech question, instead focusing on Phillips’s right to free exercise of religion.2 Writing for the majority, Justice Kennedy held that the commission that heard Phillips’s case had demonstrated “hostility” toward the baker’s religious beliefs and had thus failed to give him a fair hearing. Much of the decision hinged on the claim that one commissioner characterized Phillips’s religious rationale for his position as “despi- cable”;3 moreover, the commission appeared to treat Phillips’s case inconsistently with that of bakers more friendly to same- sex marriage. Because the decision hinges on this particular commission’s treatment of this particular baker in this particular case, it has little precedential value. It does not decide, one way or another, whether bakers’ free exercise rights— let alone their

1. Colorado Revised Statutes Title 24 Government State § 24–34–601, “Discrimination in places of public accommodation.”

2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018). 3. The Court describes the commissioner as “disparag[ing] Phillips’ faith as ‘despicable,’ ” but this

description of the commissioner’s remarks is at best controversial and at worst an uncharitable distortion. See Kendrick and Schwartzman (2018), Bell (2018), and Satta (2020).

This content downloaded from ������������128.119.168.112 on Thu, 09 Jun 2022 18:40:55 UTC������������

All use subject to https://about.jstor.org/terms

3

free- speech rights— allow them to refuse to create wedding cakes for same- sex couples.4 One commentator aptly described the decision as a “masterpiece of ducking the hard questions.”5 Discussion of the hard questions was largely left to the concurring opinions, especially those of Kagan (joined by Breyer) and Gorsuch (joined by Alito), as well as the dissent (Ginsburg, joined by Sotomayor). Kagan and Gorsuch spend consid- erable space comparing the commission’s treatment of this case, on the one hand, with that of a series of cases involving customer William Jack, on the other. In 2014 William Jack went to Azucar Bakery in Denver and requested a Bible- shaped cake decorated with the image of two grooms with a red “X” over them, plus the follow- ing paraphrased biblical verses: “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” Azucar’s owner, Marjorie Silva, said that she could not provide such a design; doing so would conflict with her moral beliefs about LGBT (Lesbian, Gay, Bisexual, and Transgender) equality. She did, however, offer to make the customer a Bible- shaped cake and to provide him with an icing bag so that he could write what he wished. The customer filed a complaint alleging religious discrimination. But the commission disagreed, arguing that Silva (and other bakers whom William Jack visited with similar requests) refused because of their unwillingness to endorse a particular message, not because of the customer’s religion. (For simplicity, I’ll treat the Azucar case as representative of the various cases involving customer William Jack.) William Jack was clearly aiming to make a point: If a baker shouldn’t be forced to create a cake condemning same- sex relationships, why should he be forced to make one celebrating them? If the only difference is the content of the message, then it seems that the commission is engaging in unconstitutional viewpoint dis- crimination. Unfortunately, the commission’s own discussions of the cases do appear inconsistent. As Justice Kennedy explains, writing on behalf of the Court:

The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the cus- tomer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti- gay mar- riage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection.6

4. On the contrary: “The Court’s precedents make it clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws . . . [But] whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.” Masterpiece, 2–3.

5. Dorf (2018). 6. Masterpiece, 15.

This content downloaded from ������������128.119.168.112 on Thu, 09 Jun 2022 18:40:55 UTC������������

All use subject to https://about.jstor.org/terms

4

Justices Kagan and Gorsuch agree with the Court that the commission’s explana- tions were inconsistent. They differ on the following question: Is there an available rationale that could make the rulings consistent, both with each other and with con- stitutional free- speech and free- exercise guarantees? Gorsuch says no, Kagan says yes. In this paper I’ll side with Kagan and offer some arguments to buttress her position. I proceed as follows. In part 1, I lay out the debate between the two jus- tices. In part 2, I’ll articulate a key distinction: between design- based and use- based refusals of service. In part 3, I’ll explain how use- based refusals can be tantamount to user- based refusals and can thus run afoul of public accommoda- tions law. In part 4, I will further answer Gorsuch by explaining the unacceptable implications of his proposed line- drawing. I conclude in part 5 with some general considerations about free speech and the “cake wars.”

1. THE KAGAN- GORSUCH DEBATE

Must the commission decide the Azucar case the same as the Masterpiece case, either requiring both bakers to provide the requested cakes or permitting both to refuse? Justice Gorsuch thinks so. He argues,

The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused ser- vice to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intend- ing only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).7

There is much to discuss here, and I will return to various aspects of this passage throughout the paper. For the moment, I want to recount the lively debate it prompts between Justices Gorsuch and Kagan. In a footnote to her concurrence, Justice Kagan challenges Justice Gorsuch’s description of the Masterpiece case:

In [Justice Gorsuch’s] view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” That description perfectly fits the Jack cases— and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite- sex couples.8

7. Masterpiece, 4. 8. Masterpiece, 3.

This content downloaded from ������������128.119.168.112 on Thu, 09 Jun 2022 18:40:55 UTC������������

All use subject to https://about.jstor.org/terms

5

Why does Justice Gorsuch adopt this “surprising characterization?” The answer stems from how he distinguishes cake- types. On Justice Gorsuch’s inventory, the relevant item is not merely a cake, or even a wedding cake, but a “cake cele- brating same- sex marriage”— and Jack Phillips would indeed refuse to sell that item to anyone. As Justice Gorsuch elaborates when comparing the Azucar and Masterpiece cases:

So, for example, the bakers in [Azucar] would have refused to sell a cake denigrating same- sex marriage to an atheist customer, just as the baker in [Masterpiece] would have refused to sell a cake celebrat- ing same- sex marriage to a heterosexual customer. And the bakers in [Azucar] were generally happy to sell to persons of faith, just as the baker in [Masterpiece] was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mat- tered to the bakers.9

Justice Kagan retorts: But that is wrong. The cake requested was not a special “cake celebrating same- sex marriage.” It was simply a wedding cake— one that (like other standard wedding cakes) is suitable for use at same- sex and opposite- sex weddings alike.10

In response, Justice Gorsuch accuses Justice Kagan of adopting a “Goldilocks rule,” calculating her inventory of cake- types “just right” to generate the desired out- come.11 He asks, “Why calibrate the level of generality in Mr. Phillips’s case at ‘wed- ding cakes’ exactly— and not at, say, ‘cakes’ more generally or ‘cakes that convey a message regarding same- sex marriage’ more specifically?”12 What counts as the same cake? Both justices agree that if Jack Phillips refused to sell the same cakes to gay customers that he sells to heterosexual customers, then that would be strong evidence that he is discriminating on the basis of sexual orientation.13 But Gorsuch denies that Phillips refuses to sell the same cakes to gay customers that he sells to heterosexual customers, because “cakes celebrating same- sex marriage” are not among those that he sells— to any customer, gay or straight. By contrast, Phillips happily sells “cakes celebrating heterosexual marriage” to all customers. He would even sell those to a gay customer, who (one presumes) might buy such a cake for a friend. Ergo, Phillips does not discriminate on the basis of sexual orientation. I will most directly answer Justice Gorsuch’s question— “Why calibrate the level of generality in Mr. Phillips’s case at ‘wedding cakes’ exactly?”— in section 4.

9. Masterpiece, 4. 10. Masterpiece, 3. 11. Masterpiece, 9. 12. Masterpiece, 10. 13. Of course, it is possible that such a baker is refusing on the basis of some other trait that merely

incidentally correlates with sexual orientation. (Imagine the baker is a racist, and the gay people in the town all happen to be Black.)

This content downloaded from ������������128.119.168.112 on Thu, 09 Jun 2022 18:40:55 UTC������������

All use subject to https://about.jstor.org/terms

6

The quick and rough answer is that alternative calibrations have unacceptable entail- ments for other areas of antidiscrimination law.14 But there is a principled case to be made for the claim that Jack Phillips did indeed refuse to sell the same cakes to one group that he willingly sells to other groups, even apart from slippery- slope worries. I turn now to making that case.

II. “THE KIND OF CAKE”: DESIGN- BASED REFUSALS VERSUS USE- BASED REFUSALS

Most people would agree that bakers— like other business owners— should have wide discretion over what they sell. A vegan bakery need not sell cakes frosted with real buttercream; a gluten- free bakery need not sell cakes made with wheat flour; a kosher bakery need not sell cakes topped with candied bacon. No bakery need sell penis- shaped cakes, cakes decorated with swastikas, or cakes with white suprem- acist slogans. By contrast, there is a lively debate over whether bakers should have discretion over to whom they sell— and if so, how wide that discretion should be. Some theorists (including many libertarians) reject antidiscrimination law altogether, suggesting that, for example, a racist baker has as much right to refuse service to Blacks as he does to enforce “No shirt, no shoes, no service”: It’s his busi- ness, after all. Others endorse some, but not many, antidiscrimination restrictions, recognizing that when discrimination in public accommodations is deep and pervasive— as it was, for example, for Blacks during the civil rights era— market forces are largely powerless against it. Among this second group, some have argued that sexual- orientation discrimination fails to rise to the level that would justify including it in antidiscrimination statutes.15 But in Masterpiece, the legitimacy of CADA was not at issue: The parties took for granted both that antidiscrimination law is justified and that it may cover sexual- orientation discrimination. So the dis- agreement here is not over whether the baker should be permitted to engage in sexual- orientation discrimination, but over whether he did so here. There are two related ways that one could argue that Jack Phillips did not engage in sexual- orientation discrimination. One— call it customer- focused— emphasizes that the baker neither knows nor cares about the sexual orientation of his customers. As Justice Gorsuch notes, Jack Phillips “was generally happy to sell to gay persons.” We might add that he is even happy to sell them wedding cakes, as long as they are for heterosexual weddings. The other approach— call it cake- focused— is to argue that cakes for same- sex weddings and cakes for different- sex weddings are fundamentally different items. Thus, Charlie Craig and David

14. A slightly longer answer first challenges the question, by arguing that the relevant category is not in fact “wedding cakes.” More on that below.

15. See, for example, Anderson and Girgis’s essay in Corvino, Anderson, and Girgis (2017), esp. sec- tions 3.6 and 3.7.

This content downloaded from ���&#xF

Collepals.com Plagiarism Free Papers

Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we'll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.

Get ZERO PLAGIARISM, HUMAN WRITTEN ESSAYS

Why Hire Collepals.com writers to do your paper?

Quality- We are experienced and have access to ample research materials.

We write plagiarism Free Content

Confidential- We never share or sell your personal information to third parties.

Support-Chat with us today! We are always waiting to answer all your questions.