Gay Marriage

Supreme Court Today Mulls Whether Bakers Can Be Forced to Make Gay Wedding Cakes

Public accommodation laws clash with freedom of religion and compelled speech.


Wedding cake hat
Jane Tyska/MCT/Newscom

This morning the Supreme Court will be hearing arguments in a case that may determine whether businesses providing services for weddings— like bakers, florists, photographers—may decline to provide goods and services for same-sex couples based on their religious objections to gay marriage.

In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips was ruled to have violated the state's anti-discrimination and public accommodation laws by declining to make a wedding cake for a gay couple. Phillips has countered that his speech is being compelled and his religious freedom is being violated by being forced by law to produce a cake for the couple.

There will be some complicated questions before the court: Do religious freedom protections extend to decisions by a business not to serve certain customers? Is refusing to serve gay couples getting married fundamentally different from rejecting gay people entirely? Is baking a cake or creating a bouquet of flowers fundamentally an act of speech or artistic expression protected by the First Amendment? Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage?

The American Civil Liberties Union is representing the gay couple. The Alliance Defending Freedom represents the bakery and its owner. The Department of Justice under Attorney General Jeff Sessions has declared support for Phillips.

The Reason Foundation (the nonprofit that publishes and Reason magazine), joined the Cato Institute and the Individual Rights Foundation in an amicus brief supporting Phillips. The brief argues the court should consider the creation of cakes and floral arrangements a form of expressive speech and urges the court to resist the mandate to provide these goods and services.

Not all liberty-minded legal experts agree. Law professors Eugene Volokh and Dale Carpenter (of The Volokh Conspiracy group blog) have come down on the opposite side with a brief supporting the state of Colorado. They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment. This matters to Volokh and Carpenter, having previously argued that a wedding photographer should not be forced to provide services for a same-sex wedding because photographs and photography are recognized as a form of expression.

Carpenter further explained to Reason in an email the circumstances of the Mastershop case encouraged them to align with the opposite side: "The particular facts of the case show a 20-second conversation where the baker said 'no' before even learning what the customers might want beyond a generic wedding cake. There was no discussion of words, images, or symbols. In our view, that's stretching the protection of 'speech' too far."

Libertarians may be frustrated with the Supreme Court's decision not to address freedom of association between private businesses and customers. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers.

Government, in my opinion, should have to show a serious, significant, widespread problem threatening people's livelihoods before considering restricting the right of a business owner to refuse to associate or contract with certain customers. Wedding services do not, by any means, fall into this category of concern. I predict a close, narrowly tailored ruling, but I'm still undecided on which direction.

Reason's Stephanie Slade will be at the court today listening to arguments. Expect a follow-up post later today about the nature of those arguments and the mood of the court.