The case, Masterpiece Cakeshop vs. the Colorado Civil Rights Commission, concerns a Colorado cake artist who refused to make a cake for a same-sex couple claiming that to do so violated his religious liberty under the federal constitution. In addition, the baker claims baking – or creating – a cake is a form of free speech. In fact, attorneys for the cake shop owner Jack Phillips, have begun stressing artistic freedom or creative expression, which they see the same as freedom of speech, more than the baker’s religious beliefs in defending his client.
“Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government,” said David Cortman, senior counsel for Alliance Defending Freedom. “It imperils everyone’s freedom by crushing dissent instead of tolerating a diversity of views. We are all at risk when government is able to punish citizens like Jack just because it doesn’t like how he exercises his artistic freedom.”
Just as the state’s anti-discrimination laws wouldn’t stop “an African-American cake artist from refusing to create a cake promoting White-supremacism for the Aryan Nation,” or an “Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church,” Phillips should be allowed to turn away same-sex couples who want wedding cakes, the group representing Phillips presented in their case.
Civil-rights activists, on the other hand, worry that a decision for Masterpiece Cakeshop will open the door to more discrimination. While the ruling would be seemingly narrow—allowing the baker to refuse to bake a same-sex wedding cake but not to bar gay couples altogether—it would set a precedent that other businesses could expand on almost without limit, namely the ability to claim that a business activity is a form of creative expression.
In an amicus brief to the Colorado appeals court for the Masterpiece case, Americans United for Separation of Church and State, a lobbying group, wrote: “Restaurants, hotels, hairdressers, clothing vendors, and other businesses whose proprietors object to deploying their ‘artistic’ services to facilitate a same-sex wedding would be entitled to the same exemption.” Nor would only LGBT people be affected: The same argument “would allow nearly any business alleging similar concerns to discriminate as it pleased. Lesbians and gay men (as well as others protected by antidiscrimination statutes) would not know which businesses were open to them, and could not expect the law to consistently protect their rights.”
The ruling’s impact could be widespread because of the sheer number of businesses it could set a precedent for. Despite the proliferation of WalMarts and Home Depots across the United States, small businesses remain a large part of the US economy. There are just over 5 million businesses with fewer than 20 employees, which employ 17.3% of the private workforce.
US courts and lawmakers have traditionally given businesses this size much more leeway in deciding whom to serve or hire. Federal anti-discrimination employment laws don’t apply to businesses with fewer than 15 employees, for example, and anti-discrimination housing laws don’t cover smaller buildings when the owner lives there as well. Small, owner-operated businesses are also exempt from shareholder pressure.
This means that, taken to its logical conclusion, the Masterpiece precedent would give a large swathe of the economy the potential power to choose whom to serve based on religious beliefs. One might respond that there will always be plenty of other choices. But as Esseks wrote in his filing to the Supreme Court, “it is no answer to say that [the couple] could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant.”