Flickr / Victoria Pickering
Justice Kennedy, writing for the majority in Masterpiece Cakeshop v. Colorado Civil Rights Commission, answers the question: Is food art? SCOTUS says yes.

Culture Justice News

The Supreme Court on Monday morning ruled 7-2 in favor of a Colorado baker who refused to bake a wedding cake for a gay couple in 2012, citing his religious opposition to gay marriage. Jack Phillips, who owns Masterpiece Cakeshop in Lakewood, Colorado and calls himself a devout Christian, argued that being forced to create a cake that conflicted with his own beliefs would violate his first amendment right to free expression. We covered the case back in December when the Court was hearing oral arguments.

As our reporter Sam Bloch wrote at the time, the case hinged on a fundamental question: Is food art?

In an opinion penned by Justice Anthony Kennedy, the Supreme Court answered “yes.” Kennedy writes that Phillips’ argument “has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.” Kennedy adds that, since gay marriage wasn’t legal in Colorado in 2012, there is “some force” to Phillips’ argument that he was following the law.

The ruling is significant for small businesses who have been waiting in the wings to see what the Supreme Court rules.
And with the stroke of a pen, the definition of “art” has expanded to include decorative wedding cakes. The decision cracks open a door for other small businesses that provide creative services to assert their free speech rights by denying those services to certain groups of people against which they harbor moral objections.

Kennedy acknowledges that decorated wedding cakes, though lovely, may never hang on the walls of the Met. “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protective speech.” But he adds: “This is an instructive, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

“I think that’s a dangerous precedent to set.”
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. “There is much in the Court’s opinion with which I agree,” writes Ginsburg. She goes on to cite portions of the majority and concurring opinions that conclude that religious and philosophical objections don’t typically allow business owners to deny equal access to goods and services, that the state of Colorado is allowed to protect gay people in the same way it protects other groups of people, and that gay people should be spared “indignities” when they try to buy things on the open market. Yet, she writes, the parts of the majority opinions she agrees with should have lead to a ruling in favor of the soon-to-be-married couple, not the baker selling them the cake. Of the lines she sampled from the majority opinions, she writes “All of the above-quoted statements point in the opposite direction.”

As Bloch wrote for The New Food Economy in December, the ruling is significant for other small business owners, including wedding photographers and florists, who have been waiting in the wings to see what the Supreme Court rules. Though their arguments previously have not held up in the lower courts, this decision may precipitate a reversal.

“I think that’s a dangerous precedent to set,” Danielle Weatherby, a law professor at the University of Arkansas, told Bloch in December. “I don’t mean to sound dramatic, but it could lead to a system where a large portion of service providers won’t serve a particular group of individuals.”

H. Claire Brown

Claire Brown is a staff writer for The New Food Economy focusing on food policy and the environment. Her reporting has won awards from the Newswomen’s Club of New York and the New York Press Club. She is based in Brooklyn. She can be reached via email at claire.brown@newfoodeconomy.org or on Twitter at @hclaire_brown.

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