More Than Dessert: How Wedding Cakes Could Redefine Free Speech


Nick Morgoshia

Few things stir the American blood as much as the First Amendment. Almost as old as the U.S. Constitution itself, the First Amendment vouchsafes our continued existence as a marketplace of ideas by barring Congress from “abridging the freedom of speech, press, peaceful assembly, and religion.” Throughout history, this rather generic language has given rise to conflicting interpretations – prompting the Supreme Court to examine whether the realm of the First Amendment extends to nontraditional forms of self-expression. In Buckley v. Valeo, the eight justices wrapped their gavels around the issue of campaign spending; more specifically, whether the quantity of money determines the quality of expression. In Texas v. Johnson, the Court tried to decide whether prohibitions on desecrating the American flag violated the First Amendment; that is, if symbolic acts constitute speech. In the pending Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court will render its verdict on one of the most consequential questions facing our generation: whether cakes – and, by extension, artistic creations in their many graphic and culinary forms – amount to free speech.

Same-sex couple Charlie Craig and David Mullins’ trip to Masterpiece Cakeshop, a local bakery, started in a small Colorado town of Lakewood in 2012 and continues on the steps of the United States Supreme Court to the present day. Masterpiece’s owner Jack Phillips declined the couple’s request for a wedding cake, stating that although they were welcome to purchase any other baked goods in the store, he would not cater to an event that ran counter to his deeply held Christian beliefs. Alleging violation of the state’s public accommodation law, Craig and Mullins filed a complaint to the Colorado Civil Rights Commission. The complaint quickly morphed into a lawsuit and brought favorable rulings for the plaintiffs by both Colorado district and appellate courts.

Per Mr. Phillips’s logic, custom cakes convey messages – for example, having two grooms on a wedding cake inherently purports the idea that non-heterosexual unions are acceptable – and forcing bakers to go against their personal convictions impinges on their First Amendment rights. The Supreme Court decided Mr. Phillips might indeed have a point and agreed to proceed with the case in 2017. Oral arguments have been heard, and a decision is expected by the end of this summer.

The Colorado public accommodation law, pertinent to restaurants, bakeries, hotels, and all other places generally open to the public, prohibits discrimination on the basis of “marital status or actual or perceived sexual orientation”; just as it does in the cases of “race, ethnicity, and national origin.” Unsurprisingly, Phillips’ opponents argue that his refusal to make the cake out of religious beliefs is no different from the restaurants in the Jim Crow South refusing to serve African American customers. After all, one could always claim that their religious convictions advise against racial integration. Refusing to serve someone for who they are – black or white; gay or straight – is most certainly illegal. However, Mr. Phillips by no means refused to serve Craig and Mullins. In fact, he offered to sell them any product available at his store. Declining to comply with customers’ special requests – and given that Mr. Phillips is a painter focusing on custom cakes, every cake has a unique design and constitutes a special request in and of itself – is bad business, not discrimination. Therefore, the case at hand has more to do with the state-mandated interference in Mr. Phillips’s artistic expression rather than his violation of public accommodation laws.

In his many interviews, Mr. Phillips has repeatedly emphasized that it is not just gay wedding cakes he refuses to make; he has continuously turned down customers asking for Halloween, anti-American, and adult-themed cakes as well. That said, I cannot help but ask: if it is decided that the state can indeed force Mr. Phillips to make a cake for Craig and Mullins, does it mean it can also force him to cater to Halloween and bachelorette parties? The scope of implications only keeps getting broader. Would private architects no longer be able to decline projects they believe to be inconsistent with their architectural preferences? Would painters no longer be able to choose who to paint?

Like most people, I sympathize with the Craig and Mullins situation. A wedding is a truly special occasion, and no one deserves unpleasant surprises in preparation for their big day. Yet, undermine the First Amendment rights of one baker, and you set a precedent potent enough to influence constitutional freedoms of millions of Americans.