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In Cakeshop Case, One Side Argues Sexual Behavior Is Akin To Race, The Other For Speech And Religious Freedoms


On December 5, the Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, arguably one of the most important free speech and free exercise cases in 50 years. There are not only varying legal interpretations of the case, but political and cultural divisions, typically along partisan lines.

Recently, the American Civil Liberties Union, which represents the plaintiffs in the case, hosted a media call making this astonishingly clear. The ACLU attorney, plaintiffs, several LGBTQ advocacy organizations, and Jim Obergefell of Obergefell v. Hodges fame all characterized the core issue in Masterpiece as not free speech or the free exercise of religion but discrimination comparable to racial division in the 1960s. It’s not only an inaccurate representation of the case, but an illogical legal argument operating under the guise of a disingenuous cultural soundbite.

Can Americans Express Their Deepest Beliefs?

Here’s a quick primer on the events that led to the Masterpiece case. Charlie Craig and David Mullins, a same-sex couple, approached Jack Phillips, the owner of Masterpiece Cakeshop, a bakery in Colorado, to bake a personalized wedding cake. It’s worth noting that same-sex marriage was not yet legal at this point in Colorado. Phillips declined, not on the basis of their sexual behavior—he had served gay couples before—but on the basis that he did not wish to use his artistic abilities to celebrate a same-sex marriage, as it violated his religious beliefs.

Phillips told Craig and Mullins he would sell them any other baked goods, but not a wedding cake that implicitly or explicitly endorsed their sexual union. Devastated, the couple filed a complaint with the Colorado Civil Rights Commission and eventually sued. (They later received a free cake from another company.) While several district courts sided with the pair, eventually Phillips petitioned the Supreme Court to hear his case. After 15 conferences discussing the matter, the court agreed.

Perhaps the most fascinating aspect of the case, other than the everyday storyline, is how radically different the arguments for either side appear to be. On the one hand, the plaintiffs argue Colorado’s anti-discrimination law bars businesses from discriminating based on sexual behavior, among other things. On the other hand, Phillips argues this suit threatens his ability to live out his religious beliefs and speak freely via artistic, custom creations.

Declining a Commission the Same as Race Discrimination?

On the media call, Obergefell, the plaintiff in the Supreme Court case that ultimately required states to issue marriage recognition to same-sex couples nationwide, had this to say about Masterpiece.

“This isn’t about creativity. If we open the door to discrimination in public businesses, because the product or service includes a creative element, where does it end?” Obergefell said. “Does that mean no printing services for black people? This case is about denying service to someone based on their being, their identity, it has nothing to do with creativity….They were denied service for being gay. As a nation we’ve been down this road before…these same arguments were used to justify denying service to blacks.”

Later, Kris Hayashi, executive director of the Transgender Law Center, told media on the call, “Allowing businesses to pick and choose which laws to follow would have devastating consequences for transgenders,.. particularly people of color who already face intense discrimination.”

Ineke Mushovic, executive director of the Movement Advancement Project, was perhaps the most passionate. She spoke not only about the LGBTQ movement at large, but encouraged media to run stories to inform the public about this pending landmark decision. She too invoked language about race.

“The challenge with this case is it doesn’t look that dangerous so people are not getting informed. They are not getting outraged. That’s what our opponents are counting on,” Mushovic said. “If we lose, the far-right is going to gain a constitutional right to discriminate. And that’s going to be something we can’t undo with a legislative fix…It’s something that could chip away at our nondiscrimination laws…We hear from people who are skeptical about whether it could truly lead to, for example, legalized racial discrimination.”

Is refusing service for religious reasons like discriminating against a person because he is black? This seems to be the major public argument for the LGBT lobby in this case. It rests upon the idea that people’s sexual behavior is inborn, something they can’t change like the color of a person’s skin. This is a scientifically debatable premise. Oddly enough, it also contradicts the gender theory that LGBT organizations push on the public, which insists that every person’s gender and sexuality are fluid and thus subject to change.

It will be interesting to see if the ACLU continues to press this logic during oral arguments and if so, if the court will discuss whether sexual orientation is the same as race, as well as if people’s constitutionally guaranteed rights to their own views, speech, and religious practices remain secure despite conflicting with those of other Americans.

It’s About Freedom to See and Act As You Choose

On the media call, Ria Tabacco Mar, the ACLU staff attorney representing the plaintiffs, cited three cases in her clients’ favor, two of which had racial discrimination issues at their core: A BBQ shop called Piggy Park, which refused to integrate in the 1960s, and Bob Jones University’s policy against interracial dating in the 1980s, both of which courts struck down.

But if this case truly were about discrimination, what to make of the fact that Phillips is happy to serve gay customers in every capacity except celebrating a ceremony that violates his religion? And isn’t Phillips being discriminated against because of his beliefs? After the plaintiffs sued him, he was ordered to retrain his staff and check in with the government about what kind of cakes he was baking to ensure he was following their guidelines. He’s lost half his staff and 40 percent of his business due to being sued and having to dance around the rulings affecting his company.

Phillips has also chosen not to bake cakes for all kinds of events he disagrees with, including Halloween cakes, anti-American cakes, and cakes laden with hateful messages about gay people. Is that discriminatory against folks who want those cakes? Or living out a person’s conscience? In America, historically citizens have had the right to hold and express their ideas, even if that upsets fellow citizens. Speech and religious exercise rights are constitutionally guaranteed; the power to commission another person’s work at will is not.

At least 45 different organizations, including the Trump administration, almost 500 creative professionals, and dozens of state and federal elected politicians, have signed friend of the court briefs in support of Phillips. One of the dozens was the Ethics and Religious Liberty Commission of the Southern Baptist Convention. Its president, Russell Moore, told Baptist Press, “No person should be required to use their gifts and calling in a way that violates their fundamental beliefs, and the Supreme Court’s responsibility is to protect Americans from governments and agencies that demand this.”

People of faith like Phillips argue they shouldn’t be forced to endorse and participate in actions and ideas, while the gay lobby thinks they are justified in forcing people to endorse what they consider aspects of personhood. Here’s hoping the Supreme Court upholds the authority of First Amendment rights for all Americans.