Let Them (Not) Make Cake

Two men approached Masterpiece Cakeshop in 2012 and asked Jake Phillips, the shop owner, to create a custom-designed cake for their wedding. He informed David Mullins and Charlie Craig that he did not provide custom cakes for same-sex marriages, but said they were welcome to choose any of his other products or even a pre-made cake instead. The couple chose to sue, and the case has spent several years dragging through Colorado courts before finally making its way to the highest bench in the land. Today, the Supreme Court conducted its 90-minute hearing, preparing the way for a landmark decision.

Social media has been exploding with both outrageous claims and tempestuous support. In the process of doing the research and attempting to come to my own complete understanding of the case, I stumbled on the shocking discovery that I am not a legal guru. And that this is the perspective of Not a Legal Guru. But the world is populated with non-gurus, and the burden still remains on us to shake, scatter, and balance the evidence in a reasonable attempt to understand the world anyway. Much of this case is surrounded by outrage, and blind outrage is near the heart of the views currently shaping our culture. So let’s look at some of the most popular sentiments fueling twitter today:


“This is not about free speech.”


The idea of free speech is that the government cannot restrict expression because of its message, its ideas, its subject matter, or its content. The inverse of this is that the government cannot compel speech, either–which, by countless rulings, applies to any kind of artistic expression, under which the creation of customized cakes can reasonably fall.

The L.A. Times wrote,

The bakery’s argument is among the most radical to come before the Supreme Court in recent years. When you scratch below the surface, the case poses the following question: Is there a constitutional right to discriminate?

The bakery argues that there is, and that the Constitution should exempt it from state laws requiring that businesses not discriminate when serving their customers.

This is simply not true. Kristen Waggoner, Jack Phillips’ ADF attorney, made the following argument today before the Supreme Court:

Ms. Waggoner: The First Amendment prohibits the government from forcing people to express messages that violate religious convictions.Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions.

Justice Ginsburg: What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?

Ms. Waggoner: Absolutely not. The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech.

The argument continued in which the judges raised valid concerns about where such a line could be drawn–if the cake maker, then why not the florist? If the florist, why not the hair artist? That line is really where the most contentious bit of the argument lies: can I refuse to do the makeup for a bi-racial marriage if I have a “religious belief” against bi-racial marriage? And I think more discussion–calm, dispassionate, reasoned discussion–is needed before a political line can be drawn. But I believe that line should indeed be there, the reason for which is contained in the following statement, which was noticeably ignored by the judges:

General Francisco: Well, Your Honor, I think what it boils down to is that in a narrow category of services that do cross the threshold into protected speech — and I do think it’s a relatively narrow category — you do have protection. For example, I don’t think you could force the African American sculptor to sculpt a cross for the Klan service…

In response to everyone calling discrimination, this is not about the person. This is not about their identity. This is about the government’s compulsion in regards to participation, however indirect, in an action or event with which the person being compelled disagrees. Frankly, the most ironic portion of this entire case is that Colorado has, on three separate occasions, refused to force pro-gay bakeries to create custom cakes for Christian clients. Check it out.


“We are facing a return to the era of ‘No Blacks Allowed'”


Again. Phillips did not refuse service based on their identity. Blacks were refused public transport, education, votes, and entry into all kinds of public places–because they were black. Jack Phillips made clear statements that he would sell Mullins and Craig products, even custom products, that did not require him to participate in an event with which he had a strong religious disagreement. Although I could not find a source confirming this, I have seen in several places that the couple had shopped at this bakery in the past. The moment any store puts up a sign saying “No Gays Allowed”, I’ll be the first (probably the 567th) to write an obscure blog article against it. But that simply isn’t the case here. Phillips also refuses to make Halloween products; I, for one, would love to see a case before the Supreme Court entitled “Halloween vs. The Bakery”. But we won’t, because nobody is campaigning for the rights of witches and Harry Potter is old news.

People have the civil liberty to love whomever we want and buy from wherever we want.* I can object to whom you love and what you buy, which is also my right. I cannot refuse gas or transportation or education to you based on who you love or what you buy, based on the Civil Rights Act of 1964, because that is your civic right. Loving whomever you want is your civic liberty. If my business is to create products, I can choose to not create products that are components of liberties based on beliefs I do not share.


“If we allow one bakery to refuse one cake, all the bakeries will refuse all the cakes to all the people.”


The slippery slope argument is negligible in a capitalist society. It is said that Jake Phillips has lost 40% of his business since taking this stand. I’m not angry about that or sorry for Phillips; losing potential business is almost always the price of mixing business and belief. And I support that from a business standpoint, because that is the natural prevention of the slippery slope, and the product of capitalism. If I don’t like your business, I don’t have to shop there. If you make poor business decisions (and obviously, from a money and reputation standpoint, this was a poor business decision), you run the risk of losing shoppers. The beauty of capitalism is that mixing business with beliefs is legal–and also usually a bad decision. Can a band refuse to play at an interracial marriage? Freedom of expression says yes. Will they pay the price of lost bookings and the incurring of disfavor? Capitalism says heck, yeah. That’s the free market, folks, and it’s a beautiful thing.


“We were mortified, and just degraded.” –Mullins and Craig


From the Texas vs. Johnson case in 1989,

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

I won’t spend much time on this, because feelings by nature are relative, making them nearly impossible to regulate or objectify in any way. There is no case to be had that service should not be refused because a client could be offended. Businesses turn down clients all the time based on whether they are a good fit for that company’s image. Legislation cannot be enacted based on whether a person is offended or triggered, unless that offense or triggering harms them in an objective way. We tread on dangerous ground here in a SJW world, and while it seems to be the easiest to debunk, it is also one of the most sinister threats in today’s world to our freedom of belief and expression.

Notable articles for both perspectives:

A Baker’s First Amendment Rights, New York Times op-ed

The ‘gay wedding cake’ case isn’t about religious freedom or free speech, L.A. Times

Transcript of oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission 

*I speak from the belief that government should in no way be involved in legislating morality. While my Christian principles believe non-heterosexual love is wrong, I also advocate for anyone’s right to sin, so long as that sin does not harm others. That’s liberty and free will at work. And also, that is entirely outside the realm of the cake discussion.

Naomi Brele

Naomi Brele

In a universe gone nuts and a culture going mad, I believe truth has never been harder to uncover, propagate, and believe. I refuse to watch from the sidelines while others make their own triumphs and train wrecks of our world's ongoing narrative, and so I write. I write to start conversations; I write to be a dissenting voice in a one-way conversation. Follow me here and on Twitter to read about today's social, cultural, and political discussions framed in a perspective that only makes good sense on Tuesdays if I've had breakfast.

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