Cake Fight Part Two

Hopefully this case will provide more legal clarity than the last one.

Jack Phillips, the Colorado baker who refused to bake a wedding cake for a gay couple, is back in court. In June of last year a customer phoned Phillip’s business, Masterpiece Cakes, and requested a cake. The request was refused on religious grounds. Then, earlier this month, the Colorado Civil Rights Commission ruled that Phillips had discriminated against the customer, and Phillips in turn sued the State of Colorado alleging that they had discriminated against him on religious grounds.

This is the roughly the same series of events that ended up with Phillips in the Supreme Court earlier this year. In that instance the Court ruled that the Colorado Civil Rights Commission had indeed shown hostility to Phillips’ religion due to the remarks made by one of the commissioners. However, the Court’s decision was very narrow in scope and specific to how Phillips was treated by the Colorado Civil Rights Commission. In regards to the larger question of refusing service to people based on religious beliefs Justice Kennedy’s majority decision notes, “The outcome of cases like this in other circumstances must await further elaboration in the courts”.

This time around the cake in question was a birthday cake for a transgender woman who wanted the cake to also celebrate her coming out as transgender by having the outside of the cake be blue and the inside be pink. The Colorado Civil Rights Commission ruled that by refusing to bake the cake Phillips has discriminated against the customer, Autumn Scardina. Phillips lawsuit states that he declined the request because it would have “celebrated a message contrary to his religious belief” and that the Colorado Civil Rights Commission’s ruling should be overturned and that the Commission has again shown “anti-religious hostility”.

Stripped on context this case quickly takes on the appearance of the absurd; a man is claiming that adding certain food colorings to cake and frosting would be a violation of his sincerely held religious beliefs. However, in the context of the previous case and current questions about how to interpret and prioritize U.S. anti-discrimination laws and religious freedom laws, cases like this are absolutely necessary to clarify where we legally draw the line.

Businesses are not allowed to refuse services to whole classes of people regardless of religion. Even if a business owner sincerely believes that their religion mandates different treatment for people of different genders or races or sexual orientations or occupations, the law does not allow that. The law does allow Americans to refuse to engage in work that violates our morals, if they’re derived from religion or elsewhere. For instance a mechanic who is a staunch pacifist cannot refuse to do work for someone who is a soldier, but he can refuse to fix an Abrams tank.

Similarly, a baker cannot refuse service to people who are gay or transgender. But, can he refuse to bake a cake that is for a gay wedding or celebrating a transgender person coming out? Can he refuse one and not the other? The Colorado Civil Rights Commission says no to both, but because of how they said it the subsequent case became more about their treatment of Phillips and his religion, and so the Supreme Court really didn’t end up resolving anything.

This case is about cake and food coloring but it’s also about getting some much needed clarification on what are the legal limits of this kind of religious based refusal of service. Legally, a case involving a different business and even a different religion could have provided the same clarity, but there doesn’t actually seem to be that many other businesses out there refusing to serve customers based on religious grounds. However, the fact that this isn’t a common situation doesn’t detract from the significance of this case; religious freedom and equality are both core values of the U.S. and the law must find a way to protect both.