The Dec. 9 op-ed supporting a Colorado baker’s refusal to make a cake for a same-sex wedding (“I’d bake the cake but Jack Phillips shouldn’t have to”) misconstrues the facts of the case and the law.
In prior decisions, Colorado held that bakers could refuse to write anti-gay messages on cakes. In the case now before the Supreme Court, baker Jack Phillips refused even to discuss making a cake for a same-sex couple. Phillips did not object to writing particular words – he flatly objected to selling any cake for the occasion. Pastry-as-speech is an unprecedented legal claim. Has anyone, at any wedding, ever for a moment thought “what a beautiful cake; the baker must truly believe in this marriage”?
It is telling that during Supreme Court arguments, Phillips’s lawyers refused to offer any limiting principle for their position. If baking is protected as free speech because it involves creativity, then so are services such as devising a menu or styling hair. If Phillips’s legal argument is correct, then a wide range of businesses will be able to refuse to serve interracial couples, Jews or other groups on the grounds that the seller does not “endorse” that customer’s views.
Finally, it is no defense that Phillips was motivated by his religious beliefs. Segregationists routinely cited the Bible and the First Amendment. For decades our nation’s courts have held that civil rights laws such as Colorado’s supersede business owners’ convictions.
Bolin is an attorney and teaches constitutional law at UNC Charlotte.