You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

Masterpiece Cakeshop Isn’t a Free Speech Case

This week the Supreme Court will hear oral arguments in a case that marks the religious right's latest assault on LGBT people.


The case Masterpiece Cakeshop v. Colorado Civil Rights Commission isn’t really about cake. It is, if you believe plaintiff Jack Phillips and his attorneys from the Alliance Defending Freedom, about conscience and free creative expression. On Tuesday, that’s the argument they’ll air before the U.S. Supreme Court, in hopes of convincing the justices that Phillips should be exempt from a Lakewood, Colorado anti-discrimination ordinance. The ordinance prohibits discrimination on the basis of sexual orientation, and in 2013, the state civil rights division found that Phillips, a conservative Christian, had broken the law by refusing to serve a same-sex couple. It was an an act that the couple, David Mullins and Charlie Craig, called “offensive and dehumanizing.”

Phillips has appealed that initial finding to every possible level of the American legal system. His argument—that making cakes is a form of creative expression, and that it is unconstitutional to force him to use those gifts in ways he finds morally objectionable—hasn’t convinced a single court to rule in his favor. The Supreme Court is his last stop, and he may find a more receptive audience there. Donald Trump’s Department of Justice recently sided with him, and the addition of Neil Gorsuch to the high court’s bench adds a vote in his favor. The wild card, as always, is Anthony Kennedy, who tends to favor a generous interpretation of free speech, even as he authored Obergefell v. Hodges, the landmark ruling that legalized gay marriage in 2015.

But if the court concedes to Phillips, it will erode an already-spotty system of anti-discrimination protections. LGBT people aren’t a federally protected class: Their safety from discrimination in public places relies on local and state anti-discrimination provisions that conservative Christians have challenged, without much success, for years. Without these protections, same-sex couples could still get married—but their ability to access that right in an equal fashion will suffer. It would be a serious setback for LGBT people, and a major victory for the Alliance Defending Freedom, a far-right Christian legal group that represents Phillips and has worked for years to oppose same-sex marriage rights.

As Sarah Posner recently reported in a lengthy piece for The Nation, the ADF believes that religious wedding vendors should be exempt from anti-discrimination ordinances, citing their free-speech right to refuse to serve clients they deem morally objectionable. Those exemptions have discriminatory consequences for members of the LGBT community, but as Posner notes, the ADF believes LGBT people aren’t marginalized at all:

In a New Mexico case the following year, ADF argued that “citizens advocating to redefine marriage are among the most influential groups in modern politics; they have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.”

The ADF’s marketing of Masterpiece strongly resembles the tactics employed by another right-wing law firm, the Becket Fund for Religious Liberty, on behalf of Little Sisters of the Poor, the humble nuns who have been described as the “perfect plaintiffs” to challenge Obamacare’s contraception mandate. ADF says it is unfair, cruel even, to expect religious people to obey secular laws even if they control profit-making operations. Organizations like the ACLU are hostile secularists with good connections and lush bank accounts attacking simple God-fearing people. It’s a good line; its reactionary tone mirrors the attitudes both of white evangelicalism and the Republican Party. Martyrdom gets donors to empty pockets and voters to turn up at the polls.

The Christian right is therefore fond of it. But it’s not enough for Phillips to be a conscientious objector; he must also be innocent of the ethical crime he ostensibly committed. At National Review, David French argued that Phillips “never, ever—not once—discriminated against any customers on the basis of their identity. He baked cakes for people of all races, creeds, colors, and sexual orientations.” It’s the same argument put forward in every wedding vendor case ever brought by the ADF or one of its allied groups.

Stand back and squint, and this argument looks coherent. Why should the law obligate a calligrapher or a photographer or baker to take a specific order? But on closer review, the ADF’s argument breaks down. Wedding vendors don’t run ministries. They run businesses that are open to the public. And while business owners do have some legal flexibility over who they do or do not serve, this isn’t a matter of no shoes, no shirt, no service. The action Jack Phillips wants to take is morally equivalent to rejecting a customer because they’re blind or female or black. It doesn’t mean very much if Phillips allows a queer person to buy a birthday cake; the queer person has to hide any public evidence of his queerness in order to receive service. What Phillips wants is for the law to weight his personal beliefs about a person’s intrinsic identity above that person’s right to access a business.

Phillips’ defenders argue that rejected customers can go somewhere else for a wedding cake, and in Lakewood, Colorado that might be true. It won’t be true everywhere. Anti-discrimination ordinances aren’t standard yet—they’re a necessary but inadequate response to the absence of federal anti-discrimination law. And it’s easy to imagine that same-sex couples in more conservative communities would have a difficult time finding any willing wedding vendors. We glimpsed a similar phenomenon in Alabama in 2015, when now-Senate candidate and alleged child abuser Roy Moore ruled from the state’s Supreme Court that probate judges weren’t obligated to observe the U.S. Supreme Court’s findings in Obergefell. Same-sex couples had to travel miles to find judges willing to perform weddings, if they were able to find one at all.

So there is something especially insidious about the ADF’s insistence that this is a question of free speech. When Phillips says, “I can’t serve you because you’re gay,” the words that come out of his mouth aren’t just sounds in empty space. There is a bodied dimension to the act he seeks to commit: Phillips objects to the way LGBT people use their bodies, so he wants to remove those bodies from his shop as it suits him. All the hand-wringing over lofty matters of conscience and free speech and faith paper over something simpler and more sordid. That he believes his actions are justified by the tenets of his religion make them no less damaging to his targets.

“You cannot serve two masters,” Jesus told his disciples. “For either he will hate the one and love the other; or else he will hold to the one and despise the other. You cannot serve God and Mammon.” Phillips is obliged to pick a master, and that is a decision the Supreme Court cannot adjudicate for him. It must defend the interests of the public.