WASHINGTON – There will come a time, hopefully before long, when it won’t be legal to discriminate against gay people any more than it would be to deny goods or services to African-Americans, women or the disabled.
But we’re not at that point yet. Hence the need for Tuesday’s food fight at the Supreme Court.
On the justices’ plates: whether a baker can refuse on First Amendment grounds to make a cake for a gay wedding because it offends his Christian beliefs. Layered throughout the oral argument: Is food speech? Or is it, well, food?
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Kristen Waggoner, arguing for Masterpiece Cakeshop of Colorado, made the creative argument that the Christian confectioner “intended to speak through that cake” and that when the cake maker bakes, “he is creating a painting on that canvas that expresses messages” – and is therefore covered by the First Amendment.
Trump administration Solicitor General Noel Francisco, also arguing for the cake maker, said that the first question was whether “the cake rises to the level of speech.” He gave no indication that his pun was intended.
To the casual consumer of cakes, it’s obvious that cake does not rise to the level of protected speech. Cake is dessert. Or possibly breakfast, if in muffin form. But for a Supreme Court that has determined that corporations are people, it is not settled law that cake is food.
This raises the possibility of other goods and services being denied to gay people by those who cite their free-speech and free-expression-of-religion rights – just as Jim Crow merchants did when refusing to serve African-Americans a half-century ago.
“The person who does floral arranging,” asked Justice Ruth Bader Ginsburg. “Would that person also be speaking at the wedding?”
Yes, Waggoner answered, “if they are custom-designed arrangements.”
“How about the person who designs the invitation to the wedding or the menu for the wedding dinner?”
Justice Elena Kagan decided to play. “The jeweler?”
Possibly, Waggoner reasoned.
“The makeup artist?” Kagan persisted.
Waggoner said that the makeup artist would not be speaking – neither, she replied to Kagan’s further questions, would the wedding tailor or the chef.
“Whoa!” Kagan pounced. “The baker is engaged in speech, but the chef is not engaged in speech?”
And let’s not even get into the butcher and the candlestick maker.
The case could go either way, with four justices apparently on the cake-is-speech side, four on the cake-is-food side and the inscrutable Anthony M. Kennedy in between. But Kennedy did tell Francisco that his side in the case has a “problem,” because “there’s basically an ability to boycott gay marriages. If you prevail, could the baker put a sign in his window: ‘We do not bake cakes for gay weddings’?”
Francisco allowed that the baker could.
“And you would not think that an affront to the gay community?”
Of course it would be. But lawyers for the cake baker argued that discrimination on the basis of race or disability is different because it is based on “who the person is” – as if being gay isn’t who the person is.
The high court has enshrined the right to same-sex marriage, but neither the court nor Congress has protected sexual orientation the way they protect race, religion, gender and disability. Several states and localities have such laws – including Colorado, whose law is being questioned in the cake case – but those will have little effect if the justices decide that anti-gay discrimination is protected as free speech.
Hence the slippery-slope questions. If the custom-cake guy, the florist and the people who design invitations and menus can discriminate, “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist,” Ginsburg pointed out.
Justice Samuel A. Alito Jr. asked about architects.
“Generally that would not be protected,” Waggoner ventured.
Justice Stephen G. Breyer interjected. “So,” he said, “Mies or Michelangelo or someone is not protected when he creates the Laurentian Steps, but this cake baker is protected when he creates the cake without any message on it for a wedding?”
This is important, Breyer said, because “we want some kind of distinction that will not undermine every civil rights law from the year to – including the African-Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes and buildings.”
Piece of cake: If you can’t do it to racial and religious minorities, women and the disabled, you shouldn’t be able to do it to gay people.
Follow Dana Milbank on Twitter @Milbank.