Author:Slade, Stephanie

IF DECORATING A cake counts as constitutionally protected speech, what doesn't count? That was the question at stake during Supreme Court oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

The case--which centers on whether a state may, in the interest of preventing discrimination, require a private baker to produce a custom wedding cake for a same-sex marriage celebration--was heard in early December.

As Jack Phillips, the baker in question, put it in a recent USA Today op-ed, his creations are "not just a tower of flour and sugar, but a message tailored to a specific couple and a specific event--a message telling all who see it that this event is a wedding and that it is an occasion for celebration." Such a message in the case of a gay union, he wrote, "contradicts my deepest religious convictions." His lawyers argue that nonetheless forcing him to "sketch, sculpt, and hand paint" a cake, as the state civil rights commission has done, is "compelled speech" and a violation of his First Amendment rights.

But wouldn't the same logic, the justices wanted to know, permit someone to turn potential clients away based on their race or religion as well? For example, could a baker refuse to make a birthday cake for an African-American child on the grounds that his religion tells him it's wrong to "celebrate black lives"?

This is an important legal question, because unlike sexual orientation, race and religion are protected classes at the federal level--and laws against discrimination on those grounds have been frequently upheld. (In 1983, for instance, the Court ruled that Bob Jones University could not claim a religious exemption to government desegregation efforts.) If Phillips' challenge to the Colorado law necessarily implicates widely accepted decades-old protections against other forms of discrimination, it stands little chance of succeeding.

On the other hand, if there is some aspect of the Colorado policy that clearly separates it from (and makes it more egregious than) the laws that came before, the justices might be willing to side with the cake artist. Thus, their frequent attempts to get Phillips' lawyers to narrowly define their theory...

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