How is refusing to sell cakes for same-sex weddings different from refusing to serve mixed-race couples? The petitioners in Masterpiece Cakeshop, Ltd, v. Colorado Civil Rights Commission would have us believe that creating a wedding cake can be an expression of free speech, and as such is constitutionally protected. In other words, the cake creator cannot be forced to make a cake with a particular message that goes against his or her personal beliefs.
The thing is, there is speech involved on both sides. The design of the cake may be saying something that implies the virtue of same-sex marriage, but since it is commissioned by the customers, is it not their speech and not that of the cake artist? From oral arguments before the Supreme Court, Dec 5, 2017, page 15:
JUSTICE SOTOMAYOR: … when have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten.
Now, some people might love the aesthetic appeal of a special desert, and look at it for a very long time, but in the end its only purpose is to be eaten. And the same with many of the things that you’ve mentioned. A hairdo is to show off the person, not the artist. When people at a wedding look at a wedding cake and they see words, as one of the amici here, the pastry chef said, there was a gentleman who had upset his wife and written some words that said “I’m sorry for what I did,” something comparable, and the chef was asked, the cake maker was asked, was that affiliated with you?
And she said no. It’s affiliated with the person who shows the cake at their wedding. It’s what they wish to show.
It sounds like a valid argument to me. The artist is expressing artistry, but in this case the pro-gay message of the cake was commissioned by the customers, so it is the customers’ speech that is at question, not the speech of the cake creator.
If that argument holds, it brings us back to the original question, comparing this case with marriage involving couples of “mixed race.” Gay rights are not yet at par with civil rights cases involving race, but it is quite comparable. If you substitute the term “mixed race” in place of “same sex,” does it sound racist? If so, then I think we have a problem of bigotry. It will be interesting to see how the Court rules.