Is a wedding cake speech? When a baker makes a wedding cake, is he or she declaring support for the couple's marriage? Can a baker decline to bake a cake for a gay couple (and defy a state's anti-discrimination laws) because he or she objects to same-sex marriage on religious grounds?
Today, the Supreme Court announced they would be taking up a case that may answer these questions for anyone who provides services for gay weddings. This is likely to be a case with a narrow ruling about religion and compelled speech and what constitutes an artistic expression. Don't expect a broad ruling that would change the nature of state-level public accommodation laws one way or the other.
In Masterpiece Bakeshop Ltd. Vs Colorado Civil Rights Commission the owner of a bakery in Lakewood, Colo., declined to bake a wedding cake for a gay couple because he had religious objections to same-sex marriage. In 2014 he was ruled to have violated the state's anti-discrimination laws on public accommodation.
He is one of a handful of similarly-minded business owners who offer their goods and services to weddings but oppose same-sex marriage recognition. We've seen other cases involving bakers, florists, photographers, and owners of private wedding venues.
The Supreme Court had previously turned away challenges to state-level antidiscrimination laws, but the court has been sitting on this case for months without deciding one way or another if they'd take it. Today was the last day in this session for the court to report out whether they would grant the case. After months of rescheduling, they've decided that they will.
The case will in all likelihood be very narrowly focused on whether the free speech and free religion rights of bakery owner Jack Phillips have been violated. The Supreme Court will have to consider whether the making of a wedding cake is a form of artistic impression and whether, therefore, laws forcing Phillips to serve same-sex couples constitutes compelled speech.
Historically, as I explained about these cases in 2015, courts have not determined cakes themselves to be expressive activity (therefore not protected speech). But text, writing, and imagery placed on the cake can be considered speech, and a bakery cannot be forced to communicate text or images they deem offensive. The question is whether the creation of a wedding cake itself is a form of speech.
Libertarians hoping for a broader ruling related to whether public accommodation laws violate the free association rights of business owners will probably be disappointed. There is zero chance this court is going to rule in such a way that alters state-level public accommodation laws. This case will mostly revolve around whether the activities of people like bakers and florists are considered artistic speech and therefore are possibly exempt from such laws.
Read more about the case itself from SCOTUSblog here.