Dave Mullins and Charlie Craig in 2012. Photo by Kathryn Scott Osler/The Denver Post, via Getty Images.
It’s the age-old question kicked around by skeptical Art History 101 students, the Art Decider Twitter account, and former New York City mayor Rudy Giuliani: Is it art or not art? And now, a Colorado baker is asking the U.S. Supreme Court to judge whether his wedding cakes are artworks—or if they are just, well, cakes.
That’s one question at the heart of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which first began in 2012 and for which the Supreme Court is expected to hear arguments in December. Self-described “cake artist” and devout Christian Jack Phillips told customers Charlie Craig and David Mullins he would not bake them a wedding cake after learning it was for their same-sex marriage, because it would violate his religious beliefs.
The Supreme Court hearing comes just two years after the justices declared same-sex marriage a constitutional right in Obergefell v. Hodges, and follows the successful lawsuit the couple filed under Colorado’s Anti-Discrimination Act (CADA), a state public accommodation law that requires public businesses to serve individuals irrespective of, among other factors, their race, creed, national origin, and sexual orientation.
The Supreme Court deliberated on whether to take the case for almost a year (four justices must vote for a case for it to receive a full hearing) before agreeing to hear the suit in June.
The court’s ruling could decide whether LGBTQ couples can legally be denied services by businesses owners who have religious objections to their union or sexual orientation. But Phillips has added an unusual twist to the religious freedom question: whether personalized wedding cakes are artworks. In other words, is creating a custom wedding cake expressive enough to constitute speech? If so, it would require a stricter review of the constitutionality of the Colorado anti-discrimination law by courts.
Creating wedding cakes is “no different than painting on canvas,” said Jeremy Tedesco, senior counsel at Alliance Defending Freedom, the Christian nonprofit representing Phillips. Like other works of visual art, Tedesco argues, Phillips’s cakes are communicative and qualify as speech. The baker’s brief to the court describes the painstaking sculpting and sketching required to construct the layered desserts, comparing Phillips’s work to that of Piet Mondrian and Alexander Calder.
As such, Tedesco contends that Colorado’s public accommodation law is unconstitutional because it violates Phillips’s First Amendment rights by compelling him to create expressive content (in this case, wedding cakes) in conflict with his religious beliefs. Jeffrey Wall, the acting U.S. Solicitor General, cited a similar argument in an amicus brief siding with Phillips on behalf of the U.S. Justice Department.
But the American Civil Liberties Union (ACLU), which is representing Craig and Mullins, said that creating a First Amendment exception to public accommodation laws could punch major holes in statutes that demand everyone be served equally. The position advanced by Phillips is “an argument that the constitution protects discrimination,” said Louise Melling, deputy director of legal affairs for the advocacy group, calling that a “radical proposition.”
Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, Colorado. Photo by Matthew Staver/For The Washington Post, via Getty Images.
The Colorado Civil Rights Commission’s brief to the Supreme Court sets the free speech question aside, charging that the facts of the case don’t suit an argument over the expressive nature of wedding cakes. Both sides agree Phillips refused to create a cake for the couple before knowing what would be depicted, or if the wedding desert would even be custom-made. His refusal was based “solely” on the sexual orientation of Craig and Mullins, the brief states, not on the expressive content of the cake.
“Had [Phillips] refused to serve the couple because they sought a cake with a particular design or which featured a specific message, this case would have presented different legal issues,” it reads.
But, said Melling, even if wedding cakes are deemed “expressive conduct,” refusing to sell one to a same-sex couple remains “impermissible discrimination” under the law.
“No bakery has to sell wedding cakes,” Melling added. “But if it chooses to sell wedding cakes it can’t turn away some customers because of who they are.” The ACLU’s brief, filed on behalf of the couple, maintains that the law is constitutional because it targets conduct, not speech, of public businesses.
Phillips argues that anyone is free to purchase pre-baked goods from his store, but should he provide custom wedding cakes to same-sex couples, it would appear as if he were backing their union. Lower state courts in in the Masterpiece case have rejected this contention, ruling that simply following Colorado’s anti-discrimination law cannot reasonably be construed as an endorsement of same-sex marriage.
Even if justices do deem wedding cakes to be “artistic,” that doesn’t mean artistic expression will automatically override Colorado’s public accommodation statute, said Carl W. Tobias, a law professor at the University of Richmond. The court could find that wedding cakes are expressive, while ultimately deciding that whatever free speech rights Phillips has still do not supersede the rights of the couple to be served. (Indeed, an amicus brief filed by a collective of creative cake makers didn’t advocate for one side or the other, but only asked that cakes be seen as art in the eyes of the law.)
The court’s recent rulings around gay marriage give reasons for LGBTQ advocates to be hopeful. Justice Anthony Kennedy, expected to be a crucial vote in Masterpiece, placed special emphasis on dignity in his Obergefell v. Hodges decision legalizing same-sex marriage. It seem unlikely, Tobias speculated, the court would vote to curtail rights afforded to gay couples so recently. This remains true even after the March confirmation of the right-leaning Justice Neil Gorsuch. Gorsuch took the place of the equally conservative Antonin Scalia, who died last year, leaving the ideological makeup of the bench intact.
So what is left to be said of the argument that wedding cakes are art, trumping Colorado’s law? “It is creative, just like the cakes he makes,” said Tobias. “But I’m not sure it’s going to carry the day.”