Let them eat cake

There’s nothing controversial about cake, right? Wrong. I almost wrote about Richard Spencer again, but then came across this article on the polemical potential of everyone’s favorite birthday confection. Except the cake in question this time is actually for a wedding, and is contentious enough to fuel a Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which will be heard next month.

The case summary is this: David Mullins and Charlie Craig are getting married, and they wanted to have their cake made by Masterpiece Cakeshop in Lakewood, Colorado. However, the owner, Jack Phillips, refused to make the cake for a gay couple. He is being charged with discrimination, but he claims the First Amendment protects his right to self expression. It’s a question of “protected expression” versus “unlawful discrimination.”

What I find most interesting about this case, is what the problem they’re arguing over actually is. I initially thought it would be a case about the freedom of religion versus the freedom of speech, but it’s actually a debate about the semantics of what constitutes speech. Everyone seems to agree that artists such as painters, singers, actors, writers, and photographers have protected expression. But can baking and cake decorating count as speech as well? Eugene Volokh, who is a prominent First Amendment scholar, does not think so. “A chef, however brilliant, cannot claim a free speech clause right not to serve certain people at his restaurant, even if his dishes look stunning,” he says. “The same is true for bakers, even ones who create beautiful cakes for use at weddings.”  Yet in 2013 Volokh supported a photographer who wouldn’t photograph a gay wedding. In the realm of wedding planning, choosing a photographer and a cake baker seem comparable— as in, it seems like the same legal rules would apply to both. But in the realm of free speech, Volokh and other scholars think that they are separated  by a fine but crucial line.

On the other side, the Cato Institute says, “The fact that Jack’s media are icing and chocolate rather than ink or paint does nothing to diminish the artistic content of his work.” Both are compelling arguments. I’m compelled to side with Volokh that this is unconstitutional discrimination, but I’m not sure how biased that may be by my personal belief that the baker’s views are offensive and indefensible even by religious views. Yet if his beliefs are in earnest and his expression is meaningful to him, is it right to force him to do it?  In deterring what constitutes speech, a dividing line does seem to be what the overwhelming purpose of the expression is. A painting, for example, is made to be looked at, a song is made to be heard. A cake is made to be eaten, with a secondary purpose of being aesthetically pleasing. That’s likely not a bulletproof line of thought (would carpentry then, not count as an art because of its functionality for sitting?), but it’s a starting point. This debate seems almost hilariously not important enough for the Supreme Court, and ultimately I doubt the couple wants that cake anymore (and I’d hate the bakery to have their business)— but really it’s the principal of the matter and ultimately, the precedent it sets.

As Professor Volokh said, “At some point, you have to decide what counts as speech and what doesn’t…Otherwise, all human behavior could be said to be expressive.” What can we argue is speech? Which expression are we willing to protect? And which expression are we willing to force?