Podcast: Deconstructing the “Gay Wedding Cake” Case


In this episode of The First Five, host Lata Nott delves into one of the most controversial cases on the Supreme Court’s docket this year, Masterpiece Cakeshop, and what the Court’s decision means for First Amendment and LGBTQ rights.




Lata Nott is the Executive Director of the First Amendment Center at the Newseum Institute.


Lata Nott:  Welcome to the First Five, a program of the Newseum Institute in Washington DC. Dedicated to the five freedoms guaranteed by the First Amendment. The first five is a podcast where we cut through the legal jargon and explain to you exactly how your first amendment freedoms work and what you can do to protect them. I’m your host, Lata Nott.

Lata Nott:  It was supposed to be one of the most controversial Supreme Court cases of the year.

Kristen Looney: How are we gonna reach out across the aisle and across our differences and even if we completely disagree with what the court says, how are we gonna continue to live?

Lata Nott: That’s my colleague, Kristen Looney, the director of the Religious Freedom Center, in a podcast episode that we recorded last December. She’s talking about masterpiece cake shop v Colorado civil rights commission.

Lata Nott: You might know it better as, “that case where the baker refused to make a wedding cake for a gay couple’s wedding because of religious beliefs.” At the time, both of us thought this would be the biggest decision on the Supreme Court’s docket. And that its impact, its fallout, would be huge. Well, we were wrong.  That didn’t really happen. The Supreme Court made a decision on this case last week on June 4th.  It decided in favor of the baker, kind of.  See, everyone was expecting the Supreme Court to decide once and for all whether freedom of religion can trump laws against discrimination. Everyone thought this decision might reshape the landscape of gay rights and religious freedom in the United States. Instead the Supreme Court just kind of punted. The Court did side with the baker, but it was a very narrow decision. Meaning that instead of changing the legal landscape as we know it, the Court essentially said, “In this particular instance, under this very specific set of circumstances that may never occur again, we’re siding with the baker.” Lets back up a bit.

Lata Nott:  In 2012, Jack Philips, owner of the masterpiece cake shop refused to bake a wedding cake for a same sex couple. Philips is a Christian and says that same sex weddings are antithetical to his religious beliefs. The couple filed a complaint with the Colorado Civil Rights Commission which did some investigating and found that Philips repeated refusal to make cakes for same sex weddings was a violation of Colorado’s anti-discrimination act.  The commission was unswayed by Philips’ argument that requiring him to make these wedding cakes would violate his first amendment rights. So Philips went on to appeal to the Colorado Court of Appeals, which just sided with the commission against him. Now the Supreme Court’s decision to review Philips’ case sparked anxieties across the political spectrum. Some feared that the court would find civil rights laws to be unconstitutional and wondered if that would effectively transform the freedom of religion into the freedom to discriminate.

Lata Nott:  This is Dave Mullins, one half of the couple that was turned away from the masterpiece cake shop being interviewed on CNN.

Dave Mullins: Well, I mean the point of this case wasn’t whether or not there was someone else out there who could bake a cake for us. The reason we brought this case was because we didn’t want another loving couple to have to be turned away from a business just for who they are.

Lata Nott: There’s a deep indignity to being turned away from a public-facing business just for who you are.  Not because of something you’ve done or something you said, but because of something immutable about yourself. And anti-discrimination laws are meant to keep that from happening. But what are they worth if anyone can refuse you service because they believe you don’t deserve it? Respecting peoples’ sincerely held beliefs sounds good, but it can lead to some outcomes that actually degrade other people. But on the other side of this issue is the question of whether the law, the government should be able to force people to act against their conscious. Here’s Jack Philips talking about the case at a rally outside of his cake shop.

Jack Philips:  It was shocking to me that the government would try to take away my freedoms and force me to create something that went against my faith. The government’s hostility directly impacted my family’s shop. We faced death threats and harassment all for choosing not to design a cake that celebrates one particular event.

Lata Nott:  Philips would have sold the same-sex couple anything else in his shop.  The only thing he wouldn’t do is make them a custom wedding cake. He calls the cake a canvas.  It’s his form of art. And yes, there is something odd about a law that forces people to create art that would violate their beliefs. Adding another wrinkle, many First Amendment advocates thought this case was actually about freedom of speech, not freedom of religion.

Lata Nott:  Here’s First Amendment lawyer, Bob Corn-Revere explaining why at a panel on the Masterpiece Cakeshop case that took place in March.

Bob Corn-Revere: If someone prohibited school children from bringing rainbow themed cupcakes to school in celebration of tolerance and acceptance and all of that, then I think most of the people in this room would agree that there was a First Amendment issue here,  saying that you can, through the symbolism of food,  express some sort of idea, even if there are no words involved, even if it is purely symbolic.  That does present some kind of First Amendment issue. That’s really what was at issue here. It wasn’t a simple refusal to serve case where someone comes into a bake shop and you say, “Oh, you’re gay, I’m not going to serve you.” In fact, if you read the record, and it’s a very thin record below, you find that the couple came in and when the baker explained that he wasn’t going to create a custom cake for them, said, “I’ll sell you anything else in the store, I’ll sell you cookies, I’ll do a birthday cake, it’s just because of my beliefs I can’t create a wedding cake.” So it’s not as simple as saying, you can’t come to my lunch counter, it’s not a refusal to serve case, it’s a question of whether or not someone can be forced to create some kind of expressive art.

Bob Corn-Revere: The second issue is this and that is, can someone be compelled–if you agree that there is an artistic component –can someone be compelled to create art? Now I challenge anyone in this room, anyone in New York to name one case where someone has been forced to create a work of art.

Lata Nott: This case raised a lot of questions. How do you balance a group’s right to be treated with dignity against an individual’s freedom to adhere to his own beliefs? How should we define speech? And at what point does something that you’ve created become more than just a service that you’ve rendered but an actual work of art? The Supreme Court’s opinion neatly side stepped all of these questions. It narrowed its focus to how the Colorado Civil Rights Commission made its original judgment against Phillips and it found that the Commission acted with hostility toward religion in its deliberations. Freedom of religion requires the government to stay neutral on matters of religion, neither promoting nor undermining any particular religion, or religion in general. But when the Commission met to discuss this case, one of its members said, “Freedom of religion and religion have been used to justify all kind of discrimination throughout history, whether it be slavery, whether it be the Holocaust.” And he went on to say that this was one of the most despicable pieces of rhetoric that people can use, to use their religion to hurt others.

Lata Nott:  So the Supreme Court took major issue with that statement.  Justice Kennedy wrote the opinion and here are his exact words: “To describe a man’s faith as one of the most despicable pieces of rhetoric that people can use is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical, something insubstantial and even insincere.  The Commissioner even went so far as to compare Philips’ invocation of a sincerely held religious belief to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law, a law that protects against discrimination on the basis of religion as well as sexual orientation. For these reasons, the court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s review of Philips’ case.”

Lata Nott: The Supreme Court’s vote on this was seven to two, with only Justices Ginsburg and Sotomayor dissenting. So where does that leave us? Almost exactly where we were before. Colorado’s Anti-Discrimination Act and laws like it are still constitutional; freedom of religion could still be a possible loophole to avoid compliance with such laws; custom-made cakes may or may not be an act of speech; and civil rights commissioners should watch the tone of their deliberations. One of my favorite takes on this is from Mark Joseph Stern, who writes for Slate. He said that Kennedy has, “in effect given states a road map explaining how they can enforce LGBTQ civil rights laws without triggering free exercise concerns.  Pro tip: civil rights commissioners, do not publicly opine on homophobes homophobia.”

Lata Nott: So the Supreme Court’s decision doesn’t really clear anything up and it doesn’t completely satisfy anyone. But what it does do is give us one last chance to make cake puns. So any way you slice it, this has been a very decisive issue for this country. And the Supreme Court’s reasoning in this case does seem a little half-baked. And the decision of punt on all the hard questions is just the icing on top. But you do have to give the Court credit.  Making a decision that makes both sides a little mad and both sides a little hopeful for the future, that’s the Court essentially having its cake and eating it too.

Lata Nott: Thank you for being with us today for another episode of the first five, a production of the Newseum Institute located at the Newseum in the heart of Washington DC. The Newseum, where there’s more to every story. For more information about the Newseum institute, go to newseum institute dot org.

Additional Resources

The Supreme Court’s opinion on Masterpiece Cakeshop v. Colorado Civil Rights Commission 

Mark Joseph Stern’s take on Masterpiece Cakeshop in Slate 

Inside the First Amendment column on Masterpiece Cakeshop 


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