There is no shortage of commentary available on the Masterpiece Cakeshop case recently argued before the Supreme Court. We, however, are both political scientists — and bakers and decorators of politically themed cakes. (Examples of our work can be seen below.) Additionally, one of us lives in Colorado while the other is in a same-sex marriage. We thus felt duty-bound to offer our opinions.
In this case, of course, a Colorado pastry chef is asserting a religious right to refuse to bake a cake for a same-sex couple’s wedding. This case is not as obvious as it may seem to many, as it pits two basic legal principles against each other: Rule one way and we come perilously close to treading on the First Amendment; rule the other way and we at least seem to brush up against the 14th. In other words, it’s a difficult case any way you slice it.
The first principle at stake is that of compelled speech, with which the Court has long been uncomfortable. Implicit in the First Amendment’s freedom of speech is the freedom to not have to say things with which you disagree. You can’t be compelled to say the Pledge of Allegiance, for example. The Fifth Amendment similarly protects us from having to incriminate ourselves when under oath.
A cake is, at least in some sense, a piece of art. But more than that, we contend that when it contains words or symbols, a cake is a speech act. Yes, as Justice Sonia Sotomayor noted in her questioning, a cake’s ultimate purpose is to be eaten, but that’s hardly its sole function. A decorated cake exists, at a minimum, to serve some aesthetic purpose or even to make an artistic, social, or political statement. The idea that a baker must create a cake for an event he finds odious simply because he was asked to seems problematic.
In essence, a cake is merely an edible and hopefully more delicious (though not, it would seem, for Justice Gorsuch) form of disappearing ink. But whether edible or indelible, it seems wrong to make people write or draw something to which they object.
Competing with that is a second principle, that of access to services. It is certainly offensive to the dignity of a same-sex couple that they would be ineligible to purchase a product from a store for no other reason than that the store’s owner disapproves of their relationship. Yes, stores will inform customers that they may be denied service should they lack shirts or shoes, but to deny a protected class on the basis of who they are is undoubtedly problematic.
This is precisely what civil rights activists risked their lives and endured beatings and humiliation for at lunch counters in Greensboro, North Carolina. Indeed, as Justice Stephen Breyer has already noted, ruling in the baker’s favor risks “undermin[ing] every civil rights law since Year Two.”
The outcome of this case is fraught no matter what happens. If the Court sides with the couple seeking the cake, there will likely be an uproar from conservatives who feel their freedom of religion is under assault. At the risk of providing inspiration, we expect that some may respond by requesting from presumed-liberal bakers — under threat of litigation — cakes featuring white nationalist slogans or other hate symbols that could potentially be framed as race-related discrimination. Those requests could serve to intimidate and humiliate even while lacking constitutional backing.
Should the Court side with Masterpiece Cakeshop, however, that presents another potential nightmare. Businesses would feel free to deny services to any group they dislike so long as they can concoct a religious objection. Businesses will polarize into those that serve certain communities and those that do not. In major cities, oppressed groups denied access to cake can nonetheless glumly turn a corner to find another baker happy to take on a new client. Yet those in minority groups outside major cities risk losing access to goods and services entirely. To be sure, we contend that neither situation is acceptable, but the implications of this ruling are likely to be felt asymmetrically and with varying severity.
Ultimately, there is good reason to believe that this case will not have any real winners regardless of the verdict. So perhaps we cannot have our cake and eat it too.
Seth Masket is a professor of political science and director of the Center on American Politics at the University of Denver and a regular contributor to this blog. Sherry Zaks is a postdoctoral fellow at the Dickey Center for International Understanding at Dartmouth College.