Abstract
In 2012, baker Jack Phillips of Masterpiece Cakeshop refused to create a wedding cake for a same-sex couple, citing religious beliefs. Colorado Public Accommodations law prohibits business owners from denying the “full and equal enjoyment” of their services on the basis of sexual orientation, and Phillips refused to sell the couple the very same items he would sell to a heterosexual couple. But Phillips, who fashions himself as a “cake artist,” argues that applying the law here would interfere with his free-speech rights. Moreover, he argues that he is not actually discriminating on the basis of sexual orientation but on the basis of a particular understanding of marriage; he is happy to sell Lesbian, Gay, Bisexual, and Transgender (LGBT) people a wide range of other items. In this chapter, I evaluate both arguments. In the postscript, I briefly explain the US Supreme Court's June 2018 ruling on the case.
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Notes
- 1.
Colorado Revised Statutes Title 24 Government State § 24-34-601 “Discrimination in places of public accommodation.”
- 2.
Brief of American Unity Fund and Professors Dale Carpenter and Eugene Volokh as Amici Curiae in Support of Respondents, p. 27, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.
- 3.
Sherif Girgis, “The Christian Baker’s Unanswered Legal Argument: Why the Strongest Objections Fail,” Public Discourse, accessed November 30, 2017, http://www.thepublicdiscourse.com/2017/11/20581.
- 4.
Brief of American Unity Fund and Professors Dale Carpenter and Eugene Volokh as Amici Curiae in Support of Respondents, p. 18, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.
- 5.
John Corvino, Ryan T. Anderson, and Sherif Girgis, Debating Religious Liberty and Discrimination (New York: Oxford University Press, 2017), 194.
- 6.
“Bob Jones University Apologizes for Its Racist Past,” Journal of Blacks in Higher Education, accessed September 14, 2017, http://www.jbhe.com/news_views/62_bobjones.html.
- 7.
From 1971 to 1975, only married black students could enroll.
- 8.
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).
- 9.
Corvino, Anderson and Girgis, Debating Religious Liberty and Discrimination, 249–50.
- 10.
Congregation for the Doctrine of the Faith, “Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons,” October 1986.
- 11.
Nashville Statement Article VII https://cbmw.org/nashville-statement.
- 12.
Benjamin Eidelson, Discrimination and Disrespect (New York: Oxford University Press, 2015), 42.
- 13.
Eidelson, Discrimination and Disrespect, 42.
- 14.
Corvino, Anderson and Girgis, Debating Religious Liberty and Discrimination, 251.
- 15.
Thanks to John Adenitire, Matthew Lee Anderson, Ryan T. Anderson, Stephanie Barclay, Dale Carpenter, Sherif Girgis, Eric Hiddleston, Andrew Koppelman, Katherine Kim, Timothy Kirschenheiter, Lawrence B. Lombard, Christopher Lund, Dale Miller, Brad Roth, Kevin Vallier, Jonah Wacholder, Lori Watson, and Robin Fretwell Wilson, as well as audiences at Harvard Law School, the Massachusetts Institute of Technology, Michigan State University Law School, KU Leuven, Cambridge University Law School, and Vanderbilt University, for helpful comments on portions of this chapter.
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Postscript
Postscript
On June 4, 2018, the Court ruled in Jack Phillips’s favor—but on narrow grounds that do not resolve the questions posed here.
In brief, the Court found that the Colorado Commission that heard Phillips’s case showed hostility to his religious beliefs, largely because one commissioner characterized those beliefs as “despicable”; it also noted inconsistency between how the Commission handled Phillips’s case and how it handled the Azucar Bakery case (and others like it). The Commission thus violated Phillips’s right to free exercise of religion by failing to give him a fair hearing.
Note that the verdict was not narrow in the sense of being narrowly decided: Indeed, it was a 7-2 split in the baker’s favor. But it was narrowly written, in the sense of applying only to this particular Commission’s treatment of this particular baker in this particular case. It does not determine, one way or another, whether bakers have a right to refuse wedding cakes to same-sex couples. On the contrary:
The Court’s precedents make it clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws….[But] whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.
How the Court would rule on “some future controversy involving facts similar to these” remains unclear.
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Corvino, J. (2018). Free Speech and Discrimination in the Cake Wars. In: Boonin, D. (eds) The Palgrave Handbook of Philosophy and Public Policy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-93907-0_25
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