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“The Kind of Cake, Not the Kind of Customer”

Author(s): John Corvino

Source: Philosophical Topics , FALL 2018, Vol. 46, No. 2, Gendered Oppression and its Intersections (FALL 2018), pp. 1-20

Published by: University of Arkansas Press

Stable URL: https://www.jstor.org/stable/10.2307/26927948

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philosophical topics vol. 46, no. 2, Fall 2018

“The Kind of Cake, Not the Kind of Customer”: Masterpiece, Sexual- Orientation Discrimination, and the Metaphysics of Cakes

John Corvino Wayne State University

ABSTRACT. In June 2018 the Supreme Court of the United States decided the case of Masterpiece Cakeshop, in which baker Jack Phillips refused to provide a cake for a same- sex wedding. The Court decided the case on fairly narrow grounds; in particular, it set aside the question of whether Phillips illegally discriminated on the basis of sexual orientation by refusing to sell the same cake to a gay couple that he would sell to a heterosexual couple. Concurring opinions by Justices Kagan and Gorsuch do address that question, however, and in this paper I explore the debate between them. By distinguishing between design- based and use- based refusals of service and then arguing that some use- based refusals are tan- tamount to discrimination on the basis of protected traits, I argue that Jack Phillips did indeed discriminate on the basis of sexual orientation. I also argue that another baker, who refused to create a “Leviticus 18:22 ‘Homosexuality is a detestable sin’ ” cake, did not discriminate on the basis of religion. I thus side with Justice Kagan against Justice Gorsuch on the question of whether the Colorado commission treated the two bakers inconsistently.

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In 2012 Charlie Craig and David Mullins visited Masterpiece Cakeshop in Lakewood, Colorado, to order a cake for their wedding reception. Same- sex marriage was not yet legal in Colorado; the couple would marry in Massachusetts and then return home to celebrate with family and friends. While perusing an album of cake photos, they were greeted by the owner, baker Jack Phillips. When they told him why they were there, he explained that he could not create a cake for a same- sex wedding because doing so would violate his religious beliefs. He added that he was willing to sell them other items in the store, such as birthday cakes. The couple left without discussing further details of the cake. The entire interaction took no more than several minutes. Craig and Mullins subsequently filed a complaint with the Colorado Civil Rights Commission. The Colorado Anti- Discrimination Act (CADA) states that:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .1

The commission found Phillips liable for sexual- orientation discrimination under CADA. The Colorado Court of Appeals affirmed the commission’s judgment. The case then worked its way up to the US Supreme Court, which issued a decision in June 2018. Most observers had expected that the Court’s decision would hinge on the baker’s free- speech rights, and specifically, whether those rights exempted him from the requirement to give same- sex couples “the full and equal enjoyment” of his bakery’s services by selling them a wedding cake. But those observers were wrong. In a surprising 7–2 decision, the Court set aside the free- speech question, instead focusing on Phillips’s right to free exercise of religion.2 Writing for the majority, Justice Kennedy held that the commission that heard Phillips’s case had demonstrated “hostility” toward the baker’s religious beliefs and had thus failed to give him a fair hearing. Much of the decision hinged on the claim that one commissioner characterized Phillips’s religious rationale for his position as “despi- cable”;3 moreover, the commission appeared to treat Phillips’s case inconsistently with that of bakers more friendly to same- sex marriage. Because the decision hinges on this particular commission’s treatment of this particular baker in this particular case, it has little precedential value. It does not decide, one way or another, whether bakers’ free exercise rights— let alone their

1. Colorado Revised Statutes Title 24 Government State § 24–34–601, “Discrimination in places of public accommodation.”

2. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018). 3. The Court describes the commissioner as “disparag[ing] Phillips’ faith as ‘despicable,’ ” but this

description of the commissioner’s remarks is at best controversial and at worst an uncharitable distortion. See Kendrick and Schwartzman (2018), Bell (2018), and Satta (2020).

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free- speech rights— allow them to refuse to create wedding cakes for same- sex couples.4 One commentator aptly described the decision as a “masterpiece of ducking the hard questions.”5 Discussion of the hard questions was largely left to the concurring opinions, especially those of Kagan (joined by Breyer) and Gorsuch (joined by Alito), as well as the dissent (Ginsburg, joined by Sotomayor). Kagan and Gorsuch spend consid- erable space comparing the commission’s treatment of this case, on the one hand, with that of a series of cases involving customer William Jack, on the other. In 2014 William Jack went to Azucar Bakery in Denver and requested a Bible- shaped cake decorated with the image of two grooms with a red “X” over them, plus the follow- ing paraphrased biblical verses: “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22.” Azucar’s owner, Marjorie Silva, said that she could not provide such a design; doing so would conflict with her moral beliefs about LGBT (Lesbian, Gay, Bisexual, and Transgender) equality. She did, however, offer to make the customer a Bible- shaped cake and to provide him with an icing bag so that he could write what he wished. The customer filed a complaint alleging religious discrimination. But the commission disagreed, arguing that Silva (and other bakers whom William Jack visited with similar requests) refused because of their unwillingness to endorse a particular message, not because of the customer’s religion. (For simplicity, I’ll treat the Azucar case as representative of the various cases involving customer William Jack.) William Jack was clearly aiming to make a point: If a baker shouldn’t be forced to create a cake condemning same- sex relationships, why should he be forced to make one celebrating them? If the only difference is the content of the message, then it seems that the commission is engaging in unconstitutional viewpoint dis- crimination. Unfortunately, the commission’s own discussions of the cases do appear inconsistent. As Justice Kennedy explains, writing on behalf of the Court:

The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the cus- tomer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti- gay mar- riage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection.6

4. 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.” Masterpiece, 2–3.

5. Dorf (2018). 6. Masterpiece, 15.

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Justices Kagan and Gorsuch agree with the Court that the commission’s explana- tions were inconsistent. They differ on the following question: Is there an available rationale that could make the rulings consistent, both with each other and with con- stitutional free- speech and free- exercise guarantees? Gorsuch says no, Kagan says yes. In this paper I’ll side with Kagan and offer some arguments to buttress her position. I proceed as follows. In part 1, I lay out the debate between the two jus- tices. In part 2, I’ll articulate a key distinction: between design- based and use- based refusals of service. In part 3, I’ll explain how use- based refusals can be tantamount to user- based refusals and can thus run afoul of public accommoda- tions law. In part 4, I will further answer Gorsuch by explaining the unacceptable implications of his proposed line- drawing. I conclude in part 5 with some general considerations about free speech and the “cake wars.”

1. THE KAGAN- GORSUCH DEBATE

Must the commission decide the Azucar case the same as the Masterpiece case, either requiring both bakers to provide the requested cakes or permitting both to refuse? Justice Gorsuch thinks so. He argues,

The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused ser- vice to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intend- ing only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).7

There is much to discuss here, and I will return to various aspects of this passage throughout the paper. For the moment, I want to recount the lively debate it prompts between Justices Gorsuch and Kagan. In a footnote to her concurrence, Justice Kagan challenges Justice Gorsuch’s description of the Masterpiece case:

In [Justice Gorsuch’s] view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” That description perfectly fits the Jack cases— and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite- sex couples.8

7. Masterpiece, 4. 8. Masterpiece, 3.

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Why does Justice Gorsuch adopt this “surprising characterization?” The answer stems from how he distinguishes cake- types. On Justice Gorsuch’s inventory, the relevant item is not merely a cake, or even a wedding cake, but a “cake cele- brating same- sex marriage”— and Jack Phillips would indeed refuse to sell that item to anyone. As Justice Gorsuch elaborates when comparing the Azucar and Masterpiece cases:

So, for example, the bakers in [Azucar] would have refused to sell a cake denigrating same- sex marriage to an atheist customer, just as the baker in [Masterpiece] would have refused to sell a cake celebrat- ing same- sex marriage to a heterosexual customer. And the bakers in [Azucar] were generally happy to sell to persons of faith, just as the baker in [Masterpiece] was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mat- tered to the bakers.9

Justice Kagan retorts: But that is wrong. The cake requested was not a special “cake celebrating same- sex marriage.” It was simply a wedding cake— one that (like other standard wedding cakes) is suitable for use at same- sex and opposite- sex weddings alike.10

In response, Justice Gorsuch accuses Justice Kagan of adopting a “Goldilocks rule,” calculating her inventory of cake- types “just right” to generate the desired out- come.11 He asks, “Why calibrate the level of generality in Mr. Phillips’s case at ‘wed- ding cakes’ exactly— and not at, say, ‘cakes’ more generally or ‘cakes that convey a message regarding same- sex marriage’ more specifically?”12 What counts as the same cake? Both justices agree that if Jack Phillips refused to sell the same cakes to gay customers that he sells to heterosexual customers, then that would be strong evidence that he is discriminating on the basis of sexual orientation.13 But Gorsuch denies that Phillips refuses to sell the same cakes to gay customers that he sells to heterosexual customers, because “cakes celebrating same- sex marriage” are not among those that he sells— to any customer, gay or straight. By contrast, Phillips happily sells “cakes celebrating heterosexual marriage” to all customers. He would even sell those to a gay customer, who (one presumes) might buy such a cake for a friend. Ergo, Phillips does not discriminate on the basis of sexual orientation. I will most directly answer Justice Gorsuch’s question— “Why calibrate the level of generality in Mr. Phillips’s case at ‘wedding cakes’ exactly?”— in section 4.

9. Masterpiece, 4. 10. Masterpiece, 3. 11. Masterpiece, 9. 12. Masterpiece, 10. 13. Of course, it is possible that such a baker is refusing on the basis of some other trait that merely

incidentally correlates with sexual orientation. (Imagine the baker is a racist, and the gay people in the town all happen to be Black.)

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The quick and rough answer is that alternative calibrations have unacceptable entail- ments for other areas of antidiscrimination law.14 But there is a principled case to be made for the claim that Jack Phillips did indeed refuse to sell the same cakes to one group that he willingly sells to other groups, even apart from slippery- slope worries. I turn now to making that case.

II. “THE KIND OF CAKE”: DESIGN- BASED REFUSALS VERSUS USE- BASED REFUSALS

Most people would agree that bakers— like other business owners— should have wide discretion over what they sell. A vegan bakery need not sell cakes frosted with real buttercream; a gluten- free bakery need not sell cakes made with wheat flour; a kosher bakery need not sell cakes topped with candied bacon. No bakery need sell penis- shaped cakes, cakes decorated with swastikas, or cakes with white suprem- acist slogans. By contrast, there is a lively debate over whether bakers should have discretion over to whom they sell— and if so, how wide that discretion should be. Some theorists (including many libertarians) reject antidiscrimination law altogether, suggesting that, for example, a racist baker has as much right to refuse service to Blacks as he does to enforce “No shirt, no shoes, no service”: It’s his busi- ness, after all. Others endorse some, but not many, antidiscrimination restrictions, recognizing that when discrimination in public accommodations is deep and pervasive— as it was, for example, for Blacks during the civil rights era— market forces are largely powerless against it. Among this second group, some have argued that sexual- orientation discrimination fails to rise to the level that would justify including it in antidiscrimination statutes.15 But in Masterpiece, the legitimacy of CADA was not at issue: The parties took for granted both that antidiscrimination law is justified and that it may cover sexual- orientation discrimination. So the dis- agreement here is not over whether the baker should be permitted to engage in sexual- orientation discrimination, but over whether he did so here. There are two related ways that one could argue that Jack Phillips did not engage in sexual- orientation discrimination. One— call it customer- focused— emphasizes that the baker neither knows nor cares about the sexual orientation of his customers. As Justice Gorsuch notes, Jack Phillips “was generally happy to sell to gay persons.” We might add that he is even happy to sell them wedding cakes, as long as they are for heterosexual weddings. The other approach— call it cake- focused— is to argue that cakes for same- sex weddings and cakes for different- sex weddings are fundamentally different items. Thus, Charlie Craig and David

14. A slightly longer answer first challenges the question, by arguing that the relevant category is not in fact “wedding cakes.” More on that below.

15. See, for example, Anderson and Girgis’s essay in Corvino, Anderson, and Girgis (2017), esp. sec- tions 3.6 and 3.7.

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Mullins were not turned away because of their sexual orientation, but because they were requesting an item that Masterpiece Cakeshop doesn’t sell. Either way, “it was the kind of cake, not the kind of customer, that mattered.” In this section, my emphasis will be on the cake- focused defense; in the next, on the customer- focused defense. Phillips’s advocates have emphasized that there were a number of cake- types that the baker refused to sell. As Justice Thomas notes in his concurrence, “Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween.”16 He refuses lewd cake designs requested for bachelor and bachelorette parties. He once even refused an order for a “divorce cake,” shaped like a wedding cake but split in two, for a customer celebrating newfound singlehood. In all of these cases, the baker is refusing a particular design: specific shapes, images, ingredients, or writing. But in Masterpiece, Phillips never discussed designs with Craig and Mullins. He declined to sell them any cake for their wedding, including cakes identical in design to those pictured in the album that the couple was perusing— designs that Phillips had already sold and would gladly sell again. Contrast Phillips’s stance with that of Marjorie Silva of Azucar Bakery. She told customer William Jack that she would gladly sell him a Bible- shaped cake. She would even provide him an icing bag so he could write or draw what he wished. In short, she was willing to sell him the same cakes— meaning, the same designs (ingredients, shapes, decoration)— that she would sell to any other customer. We can describe this contrast as the difference between design- based refusals and use- based refusals: Silva’s refusal was design- based, whereas Phillips’s was use- based. Additional examples may help illustrate the distinction. It is one thing for a custom fabric store to refuse to create a fabric including images that the owners find obscene. It is another for them to sell a design generally, but refuse to sell it to Muslims intending to use it for hijabs or Jews intending to use it for kippahs. It is one thing for winemakers to refuse to create a particular blend. It is another for them to offer that blend generally, but refuse it to priests who intend to use it at mass. In both examples, the former refusal is design- based, whereas the latter is use- based. So one answer to Justice Gorsuch’s line- drawing challenge is that there’s a natural line to be drawn between design- based and use- based refusals. And it’s a familiar line, corresponding to the line between what is sold and to whom it is sold. It’s not that we must “calibrate the level of generality in Mr. Phillips’s case at ‘wedding cakes’ exactly,” but rather at particular cake designs, some of which he is willing to sell only to some customers for some uses. That’s very different from the Azucar case. Let me consider two possible objections here. One is that I’ve been sloppy in characterizing one side of the line: Phillips’s objection is not about to whom the cakes are sold— remember, he is “generally happy to sell to gay persons”— but for

16. Masterpiece, 10.

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what purpose they are purchased. But this is a distinction without a difference, at least with respect to the line I’m highlighting in this section: One can easily char- acterize “persons celebrating a same- sex wedding” as the answer to the question “to whom?”, thus defining to whom and for what purpose in terms of each other. Of course, that still leaves the question of whether refusing to sell cakes to such persons constitutes unjust discrimination and violates antidiscrimination laws. I’ll explore that question in the next section. The other objection is that the intended use of a cake may in effect change its design, because it may change the message that the cake carries— and cakes with different messages are different cakes. Consider the following passage from Sherif Girgis:

Imagine that a fly- fishermen’s association asks you to design a cake for its annual banquet that says, in reference to riverbanks, “Banks are a blessing from the Lord.” Would this cake affirm the same thing as a custom cake with the same letters, but made to order for Deutsche Bank’s gala celebrating another year of rapacious investment banking? If you’re an Elizabeth Warren- voting fly- fisherman, can you bake the first cake but not the second, for reasons of conscience? . . . Of course, hypotheticals involving homonyms are an extreme example, but they establish a point quite relevant here: context is essential.

Other examples do the same. Say you’re a Progressive artist, and a Unitarian commissions you to paint a mural for her church that says, “What happens here is pleasing to God.” You happily oblige, knowing that Unitarians use their worship- space to pray for and celebrate care for all of creation; embrace of all sexual relations; and the salvation of everyone, regardless of lifestyle or creed. A week later, the leader of a vicious cult comes in to order the same mural for his own worship- space, which you know has been used to desecrate the Qur’an, pray for the extermination of Jews, and implore God to rain hellfire down on gay people forever.17

Put aside the mischaracterization of Unitarians’ sexual permissiveness. Girgis is certainly correct that the same item in different contexts can carry different mes- sages, especially if one calibrates narrowly: The very same birthday cake will carry a different message at Jack’s birthday party (celebrating Jack’s life) than it would carry at Jill’s birthday party (celebrating Jill’s life), even apart from any writing on top. The context changes the message. But that’s different from claiming that the context changes the design, let alone that it turns the item into a different cake. (And to be fair, Girgis doesn’t make these stronger claims.) So whatever its merits as a free- speech defense of Phillips, Girgis’s argument won’t protect the baker from the charge that he refused to sell the same items to some customers that he sells to others. Again: by “same items,” I mean the same designs, not differentiated by extrinsic properties such as where they end up after leaving the store. (My own

17. Girgis (2017).

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view is that Girgis’s free- speech argument proves too much, for reasons that will become clearer in section 4 below.) I conclude that Justice Gorsuch badly mischaracterizes things when he claims that “all of the bakers explained without contradiction that they would not sell the requested cakes to anyone.” The most plausible reading of “requested cakes” dis- tinguishes the cakes by design, not use. And so Justice Kagan is correct when she observes that his description perfectly fits the Azucar case but not the Masterpiece case. The cake- focused defense of Jack Phillips fails.

III. “NOT THE KIND OF CUSTOMER”: WHEN USE- BASED REFUSALS BECOME USER- BASED REFUSALS

The customer- focused defense— which argues that Phillips is indifferent to the sexual orientation of his customers and therefore cannot be discriminating on the basis of sexual orientation— seems initially more promising. Note that while Gorsuch offers this defense in tandem with the cake- focused one, it is logically dis- tinct: Even if Phillips’s supporters concede that he denied the same cake to Craig and Mullins that he would sell to other customers, they can still try to argue that refusing to sell a cake for a same- sex wedding is not the same as refusing one to gay persons, and is therefore not discrimination on the basis of sexual orientation. There is a weak version of customer- focused argument that simply tries to evade the charge of discrimination by introducing middlemen: It notes that the baker would happily sell the cake to gay people as long as it was intended for hetero- sexual users. But whatever its merits as a legal strategy, this version is morally unconvincing: A white supremacist realtor who refuses to sell homes to a White buyer because he knows the buyer intends to lease to Blacks surely discriminates on the basis of race. Put another way, driving a wedge between the buyer and the intended user does little to solve the moral issue at hand. The version of the customer- focused argument that I wish to explore aims to drive a wedge, not between buyer and user, but between user and use. Colorado’s Anti- Discrimination Act prohibits refusals on the basis of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry”; it does not enumerate “what kind of wedding you plan to celebrate” as a protected classifi- cation. Thus, we need further argument to show that Phillips’s use- based discrimi- nation violates CADA. In this section I provide that argument. Let me begin by recalling Justice Gorsuch’s central argument for treating the Azucar and Masterpiece cases alike:

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their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).18

There’s something odd about Justice Gorsuch’s reference to “persons who bore a statutorily protected trait.” Consider the fact that CADA protects people on the basis of race (among other traits). Everyone has a race. Thus every refusal of service— even those based on the shop’s being out of sugar— involves refusing service to “persons who [bear] a statutorily protected trait.” Of course, Justice Gorsuch goes on to acknowledge that the customer’s merely bearing some such trait is insuffi- cient: The baker must intentionally refuse service because of one of those traits. But the odd wording allows Justice Gorsuch to make the Masterpiece and Azucar cases seem more analogous than they are. Yes, William Jack has a religion, and Charlie Craig and David Mullins each have a sexual orientation. The reverse is also true: William Jack has a sexual orientation, and Charlie Craig and David Mullins each have a religion, or at least some stance with respect to religion (perhaps agnosticism or atheism). But, as Justice Gorsuch seems to agree, nothing yet follows. What does it mean to discriminate on the basis of (or “because of ”) a trait? To discriminate on the basis of X is to treat X- bearers differently in a way that tends to reflect, signal, or reinforce their differential value; to discriminate unjustly is to do so in the absence of good reasons. Context matters: Discrimination is deeply connected to social meaning. It is worth emphasizing here what discrimination does not mean. It does not require that the discriminator refuse any interaction with those bearing the trait. Consider how racists of the Old South frequently interacted with Blacks, even in intimate settings (e.g., employing them as wet nurses). Their discrimination con- sisted not in complete avoidance but in drawing rigid social lines that restricted the group in various, often complex ways. So the fact that Jack Phillips is “generally happy to sell to gay persons” does not absolve him of sexual- orientation discrimi- nation in this case. Nor does discrimination require that one bear active antipathy or hostility (in legal terms, animus) toward those possessing the trait. Jack Phillips claims to love gay people, and I believe him. But the same could be said in many clear and obvious cases of discrimination. Take the notorious case of Bob Jones University. Founded in 1927, the university prohibited interracial dating because of its founder’s interpretation of scripture. As a university spokesperson explained in 1998:

God has separated people for his own purposes. He has erected barriers between the nations, not only land and sea barriers, but also ethnic, cul- tural, and language barriers. God has made people different from one

18. Masterpiece, 4.

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another and intends those differences to remain. Bob Jones University is opposed to intermarriage of the races because it breaks down the barriers God has established.19

Although Bob Jones University maintained the interracial dating ban until 2000, it admitted Black students beginning in 1971.20 I’m sure (many if not most) admin- istrators interacted graciously with those students. Nevertheless, in refusing the full and equal enjoyment of its campus to interracial couples, Bob Jones University engaged in race discrimination. Nor does discrimination on the basis of a trait require explicit reference to the trait in the discriminator’s reasoning. Consider Anatole France’s famous quip about the majestic equality of the law, which forbids the rich and poor alike to sleep under the bridges and to beg in the streets. As Benjamin Eidelson points out, it is true at one level that this law does not discriminate on the basis of wealth, because it applies to “rich and poor alike.”21 But, Eidelson continues, “the glaringly disproportionate burden that this law places on the poor . . . suggests discrimina- tion on the basis of wealth in the dimension of how different people’s interests are valued in making the laws.” After all, housing insecurity is part and parcel of being poor. (Eidelson calls this second- order discrimination.) The upshot is that it’s possible to discriminate against a group even though one is willing to interact with them in many contexts, does so cheerfully, and doesn’t explicitly name the group when contemplating or executing the discrimination. One needs merely to treat the group in a way that reflects, signals, or reinforces their differential value. Refusing to sell the very same cakes for same- sex wed- dings that one does for heterosexual weddings is precisely this kind of discrimina- tory differential treatment. It signals to sexual- orientation minorities that we are unworthy of the institution of marriage. And just as wearing a kippah or hijab is an exercise of religion, marriage (we might say) is an exercise of sexual orientation— a deep and important one. Consider another case. Recall our hypothetical fabric shop owner, and imagine he is a silkscreen artist who applies intricate colored designs to fabrics of various materials, shapes, and sizes. At the front of his store, there is an album containing images of his creations, including many beautiful scarves. A headscarf- wearing woman enters the store and peruses the album. When the owner approaches her, she explains that she wishes to purchase one of his scarves “for a new hijab.” (Note that Muslims often buy ordinary scarves and wraps for use as hijabs; they need not be designed specifically for that purpose.) The owner refuses, claiming that the sale would violate his convictions. He adds that he does not care what the

19. “Bob Jones University Apologizes for Its Racist Past,” Journal of Blacks in Higher Education, December 26, 2016, http://www.jbhe.com/news_views/62_bobjones.html, accessed September 14, 2017.

20. From 1971 to 1975, only married black students could enroll. 21. Eidelson (2015), 42.

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customer’s religious beliefs are, and he is happy to sell her other items in the store: curtains, napkins, throws, and so on. He furthermore insists that he would not sell the requested item to anyone: He sells headscarves for non- Muslims, but he does not sell hijabs. It seems patently silly to deny that this shop owner refuses to sell the same items to Muslims that he sells to non- Muslims. It seems equally silly to deny that he is discriminating on the basis of religion. But Justice Gorsuch’s logic straight- forwardly entails both denials. Why does it seem so obvious that he is discriminating on the basis of religion? The answer is that some practices are constitutive of some identities, such that discrimination against the practice is tantamount to discrimination against the group bearing the identity. As Justice Antonin Scalia once wrote, “A tax on wearing yarmulkes is a tax on Jews.”22 Of course, not all Jews wear yarmulkes, and not all per- sons wearing yarmulkes are Jews. Nevertheless, for a Jew, the wearing of a yarmulke is the practice of religion. Same for Muslim women and headscarves. Same, mutatis mutandis, for marrying someone of the same sex and sexual orientation. Note that the problem in this case is not merely one of “unwanted but . . . fore- seeable side effects,” as Justice Gorsuch argues in his digression on the principle of double effect.23 On the contrary, Jack Phillips, just like our hypothetical fabric shop owner, refuses the sale precisely because he judges the identity- constituting practice to be morally inferior and unworthy of support. Such judgments are not incidental to discrimination; they are at its very root. Of course, Jack Phillips has a constitutional right to make and express such judgments. He may even post a sign in his store touting his support for traditional marriage. What he may not do is to deny the same treatment to homosexual couples as to heterosexual couples when conducting a public business. But what about William Jack? Couldn’t one argue that opposition to homo- sexuality is fundamental to his religious identity in the same way that celebrating a same- sex wedding is fundamental to Charlie Craig’s and David Mullins’s, such that buying or serving a “Homosexuality is a detestable sin” cake constitutes the practice of religion for him? Perhaps. Let’s grant the point for the sake of argument.24 Even so, remember that Azucar’s owner, Marjorie Silva, did not deny William Jack any ser- vices that she provided to other customers: On the contrary, she offered to sell him the same Bible- shaped cake she would sell to anyone else. And if she did not deny him the same services, then we cannot say that she denied him the same services because of his religious beliefs. In other words, she (unlike Jack Phillips) did not treat

22. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993). 23. Masterpiece, 4. 24. Put aside the fact that Craig and Mullins were sincerely shopping for a wedding cake whereas

William Jack was aiming to make a political point. I would still strongly suspect that what Craig and Mullins aimed to express was more central to their sexual orientation than what William Jack aimed to express was central to his religious identity. But my argument in no way depends on this point.

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this customer differently than she would treat any other customer. In order to make the Azucar case analogous with Masterpiece, we would have to imagine William Jack requesting a cake for a “Homosexuality is a detestable sin” party, or something like that, and Silva refusing to sell him any cake for that purpose. In other words, we’d have to imagine her doing something quite contrary to what she actually did. For comparison, imagine yet another fabric shop case. A customer enters and requests a silk banner with the words, “Shiites are infidels” along with the image of imam Ali’s shrine, a famous Shia worship site, with a red X over it. The fabric shop owner refuses to create the design. He adds that he is happy to sell the customer a fabric banner; indeed, he’ll even provide a needle and thread so that the customer may stitch on it whatever lettering he likes. Is this fabric shop owner discriminat- ing on the basis of religion? It is true (we may presume) that the requested design is tied to the customer’s religious beliefs, perhaps even intimately. But it is also true that this fabric shop owner, unlike the first, can say “without contradiction that they would not sell the requested [banner] to anyone, while they would sell other [banners] to members of the protected class (as well as to anyone else).” There is no differential treatment of customers. And thus we can truly say that this fabric shop owner is not discriminating on the basis of religion, but on the basis of a particular message and design. The Azucar case relevantly resembles this case, not the Masterpiece case.

IV. WHY DRAW THE LINE HERE?

In his discussion of where to draw the line in the Masterpiece and Azucar cases, Justice Gorsuch writes:

Suggesting that this case is only about “wedding cakes”— and not a wedding cake celebrating a same- sex wedding— actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same- sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describ- ing the cake by its ingredients is too general; understanding it as cele- brating a same- sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a mes- sage offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly— and not

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at, say, “cakes” more generally or “cakes that convey a message regard- ing same- sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a mes- sage regarding same- sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right— fine- tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views— can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but deliver- ing a loss to Mr. Phillips.25

I have already argued that a design- based/use- based distinction will do the work that Justice Gorsuch here claims cannot be done: providing a consistent principle that forbids the Masterpiece refusal but permits the Azucar one. No “adjusting the dials” is needed; the commissioners must simply draw a line between intrinsic and extrinsic qualities when distinguishing cake- types and then ask whether the baker is refusing to sell the same items to some (protected) groups that he sells to others. So the calibration is not at “wedding cakes”— for all we know, Craig and Mullins may have been seeking a cake atypical of the genre— but at particular designs (involving the same size, shape, decoration, ingredients, and so on). In this section, I want to develop a further answer to Justice Gorsuch’s ques- tion about why we ought to calibrate things this way. Why define “the same item” in terms of intrinsic features such as shape, decoration, ingredients, and so on, rather than also including extrinsic factors such as the type of party at which the cake will be served and the resulting messages that it may send? To my mind, the most compelling answer to this question is that allowing extrinsic factors to decide what counts as “the same item” for the purpose of apply- ing antidiscrimination laws would render such laws largely meaningless. There would be no principled way to limit such an approach to sexual- orientation dis- crimination, or same- sex marriage, or even wedding cakes. A few examples will make the point clear. Consider a baker who opposes interracial marriage. He welcomes people of all races into his store, and he sells them a variety of goods. But he has religious objections to interracial marriage, and he will not sell cakes for that purpose. He will gladly sell wedding cakes to interracial couples— as long as they’re for same- race weddings. He insists, however, that he is not discriminating on the basis of race; it is the “kind of cake, not the kind of customer” that matters to him. Or consider a baker whose disapproval of homosexuality is much harsher than that of Phillips. He believes, as a matter of religious faith, that “God hates fags”; he

25. Masterpiece, 9–10.

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does not believe that LGBT lives are worth living. When asked to provide a birth- day cake for an openly gay customer, he demurs. “I will sell you other items in my store,” he says— “cookies, cupcakes, brownies, what have you. I will even sell you a birthday cake, as long as the recipient is heterosexual. But birthday cakes send a message— that someone’s ongoing life is worth celebrating— and in the case of gays I don’t agree. That’s a message I don’t want to endorse, and it would violate my freedom of speech to require me to facilitate it with my cake artistry.” Much of what’s been written in defense of Phillips can be directly applied to these two cases. Consider Girgis’s argument defending Phillips against the idea that wedding cakes are primarily food, not art:

Couples don’t spend hundreds or thousands of dollars on wedding cakes out of fear that their guests might still go hungry after the salmon or filet. Nor do newlyweds make a big show of feeding the cake to each other in order to model what guests should do when their own slices come around. No, the overwhelmingly dominant purpose of having wedding cakes is to make them integral to the celebration of a new marriage— first as the centerpiece of that celebration, and then as part of its programming.

Wedding cakes in this respect are like central props in a play. And we wouldn’t let lawmakers force dissident artists to design props for use in plays promoting the state’s favored messages.26

But one could say the very same thing about birthday cakes: No one serves birth- day cakes out of fear that party guests will otherwise go hungry; they are “central props in a play” involving candles and singing and celebration. They unmistakably bear a message in that context. Indeed, our harshly antigay baker could invoke the same retort that Justice Gorsuch poses in Masterpiece: “Why calibrate at ‘birthday cakes’ specifically? Why not calibrate at ‘birthday cake celebrating a gay person’s life’— which is an item I don’t want to sell!” There has in fact been a recorded case of a baker denying a birthday cake to a customer on the grounds of sexual orientation. In July 2016 Candice Lowe ordered a birthday cake for her wife, Amanda, from Take the Cake Bakery in Toledo, Ohio. Shortly thereafter, the owner, LaGresha Fizer- Brown, visited Lowe’s Facebook page, realized that Lowe was in a same- sex relationship, and sent her a text message can- celing the birthday- cake order: “Candice, I’m sorry . . . I just realized your [sic] in a same sex relationship and we do not do cakes for same sex weddings or parties . . . I’m so sorry. I wasn’t aware of this exactly until I saw your page. Take care :).”27 The idea that a baker would refuse a birthday cake to a gay customer should not take much imaginative effort, given the prevalence of antigay attitudes in many parts of the country. An Oklahoma restaurant owner told a television reporter that he would not serve homosexuals, stating that “I’ve been in business 44 years,

26. Girgis (2017). 27. Carber (2016).

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I think I can spot a freak or a faggot.” Asked to explain the exclusion, he replied, “Any man that would compromise his body would compromise anything.”28 A Texas restaurant, while not excluding gays entirely, removes them for even mini- mal displays of affection; a server explained that “we do not like fags” and pointed to a sign on the door requiring that “men act like men and women act like ladies.”29 A Michigan car repair shop owner announced on his Facebook page that he would not serve any homosexuals, citing his religious liberty:

I am a Christian. My company will be run in a way that reflects that. Dishonesty, thievery, immoral behavior, etc. will not be welcomed at MY place of business. (I would not hesitate to refuse service to an openly gay person or persons. Homosexuality is wrong, period. If you want to argue this fact with me then I will put your vehicle together with all bolts and no nuts and you can see how that works.)30

Note that these refusals all occurred in jurisdictions lacking antidiscrimination protections on the basis of sexual orientation. Of course, one could extend the argument beyond sexual orientation. A racist baker who believes that “Black lives DON’T matter” could refuse to sell birthday cakes to Blacks, citing the same First Amendment rights as Jack Phillips. An anti- Semitic baker could refuse to sell birthday cakes to Jews— and so on. And one could extend the argument beyond cakes as well. Imagine a tailor who sells bespoke suits but believes that only the Brahmin class are fit to wear suits; others are more suited to manual labor and should dress according to their station. Surely the tailor’s refusal to sell to the “untouchable” Dalits would constitute unjust discrimination. One might object that these other items lack the moral and religious signifi- cance of wedding cakes. But that objection assumes that third parties can deter- mine moral or religious significance, and the Court has repeatedly rejected that assumption— at least with respect to what counts as a free- exercise burden. As Justice Gorsuch argues in Masterpiece:

To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case— his faith teaches him otherwise. . . . It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other— without regard to the religious significance his faith may attach to it— than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap.31

If someone believes that celebrating the lives of Jews (or gays, or whoever) is offen- sive to God, who are we to tell him otherwise? So says Justice Gorsuch.

28. Peterson (2014). 29. Israel (2014). 30. Sieczkowski (2015). 31. Masterpiece, 11–12.

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The point is that once you differentiate items based on extrinsic factors— including the significance that the business owner gives to providing them to par- ticular groups— you permit business owners to say things like, “Birthday cakes for Jews are simply not an item that we sell here, for reasons of personal religious conviction. But I’m not discriminating against Jews: It’s the kind of cake, not the kind of customer, that matters.”

V. CONCLUSION

I have argued, contra Justice Gorsuch, that there is a strong reason to treat the Masterpiece and Azucar cases differently: only in Masterpiece did the baker refuse to provide the same cake to some customers that he sells to others. To the question “What counts as the same cake?” I have argued for drawing the line according to design, not use or user. Incidentally, notwithstanding this paper’s title, that ques- tion is primarily ethical, not metaphysical. It is a question about fair treatment in the public arena. Unfair treatment of LGBT persons has profound personal effects— effects that Jack Phillips’s supporters tend to underestimate. We can see this problem in Justice Gorsuch’s comparison of Masterpiece and Azucar, where he claims that “In both cases, the effect on the customer was the same.”32 Gorsuch’s point works only if one isolates the effect of the customer’s leaving a store without a cake. If one steps back and considers the big picture, the claim fares poorly: In Masterpiece, members of a long- persecuted minority, not yet assured of equal marriage rights (recall that the case originated in 2012), are painfully reminded of their ongoing inequality. Upon entering a shop open to the public and perusing a catalog of beautiful cakes sold there, the couple is told: Those are not for you. Such unpleasant surprises, particularly during the emotionally fraught process of wed- ding planning, can conjure deep shame and stress. These effects are compounded for those who have heard similar messages from an early age— from society, from their pastors, even from their own parents: Love and marriage are not for you. By contrast, in Azucar, a customer intent on making a political point is correctly told that he may purchase the same cakes that anyone else may purchase— and walks away feeling vindicated in his political point- making. No, the effect on the customer is decidedly not the same. Throughout my argument I have said comparatively little about the free- speech aspects of the case. The argument in part 4, regarding the slippery slope to birthday cakes, exposes many of the problems with treating cakes as speech— even elaborately constructed and ceremonially significant cakes. I’ll conclude by making a more direct point about speech. Let us grant that wedding cakes express

32. Masterpiece, 4.

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a message, and that at a fine- grained level, they express different messages at dif- ferent events, because of the different parties involved. This point is as true for birthday cakes as it is for wedding cakes. It is also as true for off- the- shelf items as it is for preordered ones: Much of the emphasis on “custom wedding cakes” is, frankly, a red herring.33 But granting that wedding cakes send a message is not tantamount to granting that their sale should be treated as protected free speech, much less speech that overrides otherwise applicable antidiscrimination law. It is hardly viewpoint discrimination for the state to require places of public business to provide historically marginalized groups the same services as everyone else.

ACKNOWLEDGMENTS

I am indebted to numerous people for helpful discussion on various topics dis- cussed in this paper, including (among others) John Adenitire, Ryan T. Anderson, David Boonin, Dale Carpenter, Sherif Girgis, Timothy Kirschenheiter, Andrew Koppelman, Christopher Lund, Kevin Vallier, Jonah Wacholder, and Robin Fretwell Wilson. For recent detailed comments I would like to thank Matthew Lee Anderson, Robin Dembroff, Mark Satta, and audiences at Wayne State University, the National Autonomous University of Mexico, and the University of Waterloo.

REFERENCES

Bell, Bernard. 2018, June 20. “A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications— A Comment on Masterpiece Cakeshop (Part II).” Retrieved from http://yalejreg .com/nc/a- lemon- cake- ascribing- religious- motivation- in- administrative- adjudications- a - comment- on- masterpiece- cakeshop- part- ii/.

Carber, Frank. 2016, July 12. “Ohio Baker Refuses to Make a Birthday Cake for Lesbian Customer.” Retrieved from http://www.metroweekly.com/2016/07/ohio- baker- make- birthday- cake- lesbian - customer.

Corvino, John. 2018. “Free Speech and Discrimination in the Cake Wars.” In The Palgrave Handbook of Philosophy and Public Policy, edited by David Boonin. Cham: Palgrave Macmillan.

Corvino, John, Ryan T. Anderson, and Sherif Girgis. 2017. Debating Religious Liberty and Discrimination. Oxford: Oxford University Press.

Dorf, Michael. 2018, June 4. “Masterpiece Cakeshop Ruling Should (But Probably Won’t) Doom the Travel Ban.” Retrieved from http://www.dorfonlaw.org/2018/06/masterpiece- cakeshop- ruling - should- but.html.

Eidelson, Benjamin. 2015. Discrimination and Disrespect. Oxford: Oxford University Press. Girgis, Sherif. 2017, November 29. “The Christian Baker’s Unanswered Legal Argument: Why the

Strongest Objections Fail.” Retrieved from https://www.thepublicdiscourse.com/2017/11/20581/. Israel, Josh. 2014, May 29. “Texas Restaurant Bans Gay Couple Because ‘We Do Not Like Fags.’ ”

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33. For more on this point, see Corvino (2018).

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Kendrick, Leslie, and Micah Schwartzman. 2018. “The Etiquette of Animus.” Harvard Law Review 132(1): 33–70.

Peterson, Hayley. 2014, Februrary 10. “Oklahoma Restaurant Owner Says He Won’t Serve Homosexuals in On- Air Rant.” Retrieved from http://www.businessinsider.fr/us/oklahoma- restaurant- wont - serve- homosexuals- 2014- 2.

Satta, Mark. 2020. “Unclear Hostility: Supreme Court Discussions of ‘Hostility to Religion’ from Barnette to American Legion,” Buffalo Law Review 68(2): 641–708.

Sieczkowski, Cavan. 2015, April 16. “Michigan Car Repair Shop Owner Says He Will Turn Away Openly Gay Customers . . . and That’s Legal.” Retrieved from http://www.huffingtonpost .com/2015/04/16/car- repair- shop- gay- customers_n_7078370.html.

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