All you need to know to win an argument about the gay wedding cake case

There are a lot of bad arguments and “alternative facts” floating around the the internet about the gay wedding cake case. This article arms you with the the legal and factual knowledge you need to beat the trolls into a frothy, CAPS LOCK-inducing rage.

Is this a gay or straight wedding cake? What’s the difference? Photo via Pixnio.

The gay wedding cake case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, will be argued at the Supreme Court on December 5. During argument, the high court will be wrestling with questions like these: Is god a license to discriminate? Are bakers exercising free speech when putting icing on cakes?

The lower courts in the case have decided that Masterpiece Cakeshop, a Colorado bakery, violated the state civil rights act when it denied a gay couple service. In short, the bakery refused to bake the gay couple’s wedding cake. Now, before the Supreme Court, the bakery is arguing that it has a religious right to discriminate and a free speech right not to serve customers equally.

Just the facts

Many of the arguments swirling around this case, both online and in court briefs, are dissociated from reality. They are not arguments about what actually happened in this case. The archetype of these goes something like this: “The baker agreed to sell them a standard cake off the shelf, he just didn’t want to design a custom, gay wedding cake.”

Here’s what really happened. The couple went into the bakery. They were not there long before the baker realized they were a gay couple. At that point, the baker refused to serve them. The refusal was not because of what they wanted on their cake—they never even discussed the design—but only because they were gay. It was only later on, after the case had commenced, that the baker said he would sell them a bland, undecorated cake. (From a legal standpoint, even if that were factually true, we settled the whole separate is equal stupidity a few decades ago.)

For all the baker knew, the couple wanted a plain, three-tiered white cake or a cake with the word “Congratulations.” There is nothing inherently different about a gay wedding cake. Gay wedding cakes more often than not look exactly like heterosexual wedding cakes. The baker did not turn them away because they wanted him to say, “I love the gays,” he turned them away because they were gay. That’s it. He didn’t have any idea what they wanted their cake to look like. He discriminated against them because they were gay.

“It’s about free speech! You can’t force someone to speak in support of gay weddings!”

The facts laid out above cut the legs from under any argument that the bakery was forced to speak in a certain way. The free speech/forced speech argument is seductive, who wants to say something they don’t agree with? But it is irrelevant because, even assuming cakes are speech, the couple never got the chance to ask him to “say” anything.

Additionally, this is a business—a bakery— and more specifically, it’s a place of public accommodation. Businesses are required to speak in certain ways all the time. Warning labels on alcohol and tobacco, ingredient labels, calorie counts on labels, posting of job regulations in the place of business, hand washing signs posted in business bathrooms, equal opportunity notices — the list is endless. This is not an artist creating, it is a business selling a product to the public and refusing to sell that product to people he doesn’t like. And even if the case were about an artist, remember, he didn’t know what decorations the couple wanted on their cake.

Moreover, this argument is all based on a dubious assumption, that cakes are speech. When I order a meal at a restaurant, no matter how fancy or delicious, no matter how much a chef prides himself on the presentation or the unique flavor profile, I’m not wondering what message the chef is sending me with the food. I just want it to taste good. A batch of bakers submitted a rather sad amicus brief to the court—complete with nearly 40 pictures—arguing that baking cakes is an art form. No. You make food, a product for people to consume.

Eugene Volokh, arguably the premier free speech defender and scholar in the country, agrees that baking a wedding cake is not protected speech. He argued this in a brief to the Supreme Court along with Prof. Dale Carpenter.

“You can’t force a baker to participate in a gay wedding!”

I hesitate to include this argument because it’s so bad. It’s a ridiculous tangent to argue that the gay couple is trying to force the baker to participate in their wedding. Participate in wedding? Come on. How many married people do you know who wanted their baker in their wedding? At most, he goes to the venue to set up the cake. He’s not handing out rings or pronouncing two men husband and husband. But if you want a measure of how far the Department of Justice has fallen under Trump and Attorney General Sessions, know that this was an argument the DOJ included in its brief supporting the bakery.

The participation argument is even more absurd when we consider a fact I didn’t mention above: That the couple was already legally married. They were married in Massachusetts, so the bakery wasn’t going to participate in the wedding, just a celebration, though the same could be said of almost any baker. The cake doesn’t feature at the wedding, only at the reception.

“But it violates the bakery’s religion!”

This is probably the worst argument in the bunch. But it also has the most potential to destroy a hallowed constitutional principle. With this case, the Supreme Court could effectively redefine religious liberty.

My talk at the University of Wisconsin on the attempt to redefine religious liberty using this case.

The central question on religious freedom is this: Does having a particular belief give someone the right to act on that belief, simply because the belief is religious, no matter what its impact on others?

In the amicus brief I helped write, we explained that the right to believe and the right to act are distinct. The First Amendment’s protection of religion “has always been understood as the right to unfettered thought — freedom to believe whatever religion we choose, or none at all, without government interference of any kind. But the right to believe as we choose has never encompassed a right to act as we choose. Never has a citizen’s right to the free exercise of religion under the First Amendment — let alone a corporation’s — been understood to include the ability to engage in conduct that infringes on the rights of others.”

This distinction is crucial because the freedom to believe is absolute, the but freedom to act is not. As we pointed out in our brief, this distinction is embodied in the very text of the First Amendment itself: “‘Congress shall make no law . . . prohibiting the free exercise’ of religion. Though it may not be prohibited, free exercise can be burdened, encumbered, hampered, impeded, strained, hindered, and obstructed — and can certainly be burdened when it infringes the rights of others.”

The central question is not whether the government can regulate religiously motivated action, but where do we draw the line when it comes to religiously motivated actions? Belief is absolute: believe whatever you want. Action is not. So where do we draw the line between actions that are ok for the government to regulate and actions that aren’t?

Self-flagellation: It’s not for everyone.

Pope John Paul II reportedly whipped himself to get closer to Jesus. That is not my cup of tea. Popes should feel free to self-flagellate all they want. Mortify that flesh. But if they turn that whip on someone else in an effort to appease their god, they should expect an arrest. There’s an old legal adage, “Your right to swing your fist ends where my nose begins.” Well, no matter what your god demands, your right to swing your whip or your rosary or your crucifix ends where my rights begin.

We draw the line where the rights of others begin. As Jefferson said, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” But if religion mandates picking pockets and breaking legs, it comes under the purview of our secular law. And no belief, no matter how fervent, should change that. There is no religious right to infringe the rights of others.

One final point on the religion argument. Masterpiece Cakeshop is not an individual asking to exercise his religion, it’s a business. The Colorado Anti-Discrimination Act only applies to places of public accommodation, to businesses. The bakery is a commercial entity that really only exists on paper — it’s a legal fiction — and it wants to violate the rights of two human beings. So this case would not only redefine religious freedom to protect any religiously motivated action, no matter what the impact on others, it would allow a commercial enterprise, which exists to sell a product and make money, to have a religious belief and to act on that belief. This is nonsense. (The Hobby Lobby decision isn’t an issue in this case and, as it only applies to federal government action that touches religion, could not be an issue). The highly commercial aspect of this case takes us to the final refuge for those supporting the baker: libertarianism and free markets.

Businesses should be able to turn anyone away, the free market will fix it — aka, the Libertarian or free market argument.

Many people making this argument profess to be against discrimination personally, but don’t think the government should be able to tell people who to serve. But this argument has absolutely nothing to do with the gay wedding cake case. Nothing. This argument takes issue with the underlying statute, the Colorado Anti-Discrimination Act. Like all civil rights acts these statutes protect certain classes of people from discrimination in places of public accommodation (restaurants, hotels, hospitals, businesses, etc.). Protected classes typically include race, religion, national origin, and, in Colorado, sexual orientation.

It is these laws that require the bakery to serve everyone without regard to their race, religion or sexual orientation. The laws were passed by We the People. They are constitutional. They are in force. The argument against these laws—that business should be able to refuse anyone they want—is a policy argument, not a legal argument in the case. The laws are in place and legal. The questions in the case are whether religion or baking cakes are worthy of a First Amendment exemption from the laws.

Arguments like this are certainly worth discussing, but the time and place to do it is when the legislature is passing civil rights laws, not when the Supreme Court is determining whether religion grants people an exemption from those laws.

Dave Rubin of the Rubin Report and I discuss gay wedding cakes and discrimination.

Other than its irrelevancy to the case at hand, there are two problems with the libertarian or free market solution.

The market is not rational.

The first problem is that all market solutions depend on an assumption that most people forget about: that people make rational decisions, usually based on economics alone. And we know this is not the case. People make emotional decisions, reason is often sidelined. Exhibit A: Religion. Exhibit B: President Trump.

History has shown that the free market will not stop discrimination.

The second problem is less obvious. A couple years ago, Georgia was considering a state law that would work to enshrine the redefinition of religious freedom discussed above. CNN visited a small Georgia town to interview florists there. Every one of the five florists would refuse to serve a gay couple.

Now, not getting flowers for your wedding is not the end of the world. But what about gas stations? What about grocery stores? What if you need food for your family and diapers for your baby and the two grocery stores in town won’t serve you because you’re gay? Or because you’re black? What if the next town is the same, and the town after that?

If this sounds farfetched or absurd, it’s not. In fact, this is precisely why we have a Civil Rights Act. Martin Luther King, Jr. wrote about this phenomenon in his Letter from a Birmingham Jail in 1963. And King didn’t just focus on the lack of access to goods and services, but the indignity of being denied:

when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky.
King’s mugshot.

King also spoke about being denied service over entire swaths of the country: “[W]hen you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading ‘white’ and ‘colored[.]’”

Two months after King penned this letter, President Kennedy gave a famous address on civil rights, ostensibly about integrating the University of Alabama. In it, JFK explained that our nation “was founded on the principle that all men are created equal.” But we had not lived up to that aspiration and so Kennedy asked Congress for a law that would guarantee “all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments.” He was killed a few months later, in November. A few months later black Americans would march on Washington.

President John Kennedy’s June 11, 1963 address on racial discrimination and equal rights in America.

We have the Civil Rights Act because the market failed to stop discrimination. While America was waiting for common decency to infuse itself into the market, an entire class of people were, quite literally, second class citizens.

Markets require regulation. Even the oracle of free market capitalism, Adam Smith, admitted this. He didn’t like government regulations that constrained competition, but he was ok with regulation of markets in general. He even said that regulation, and he meant in a specific system involving London’s tailors, was great: “regulation, therefore, is in favour of the workmen, it is always just and equitable; but it is sometimes otherwise when in favour of the masters.” There are certain problems that simply cannot be solved by a free unrestricted market populated by irrational, emotional consumers and producers. A thoroughly unregulated market would be a disaster from nearly every standpoint, especially our health.

In sum, even if this argument were relevant to the Supreme Court’s case, it’s divorced from history and reality.

“So you’d be ok with forcing Jews to serve Nazis.” Or, “you’re ok forcing Bob Dylan to perform at President Trump’s inauguration.” Or “forcing a kosher deli to serve bacon.” Or. . .

I’m sure you’ve heard plenty of these attempts at gotcha analogies. I haven’t seen a good one yet. Remember, the reason the gay couple can bring this case is because sexual orientation is a protected class under the Colorado Anti-Discrimination Act. Political affiliation, be it Democrat, Republican, or Nazi, is not a protected class in any jurisdiction. The bakery could have denied the couple because they were liberal or democrats or socialists, but that’s not what happened.

Most of these analogies fail to make the case because they’re not talking about a protected class.

As to the kosher deli, these laws do not tell businesses what they are required to sell, only that if the business does sell a certain product that it cannot refuse to sell it to certain classes of people.

So, Jews could refuse to serve Nazis and Trump supporters. The kosher deli wouldn’t have to serve bacon. And Dylan can tell Trump to get bent.

Unsurprisingly, the online arguments in favor of the benighted bakery fall short. There is a disturbingly high chance that the Supreme Court will decide this narrowly on free speech grounds for the bakery. There is a slimmer chance that the justices use this case to redefine religious freedom in a way that we’ve never seen and mutate it from a hallowed personal protection into a tool of oppression. But until the court makes its decision, use this article to vanquish the online trolls and bigots.

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