The Corner

Law & the Courts

Three Thoughts on the Masterpiece Cakeshop Cert Grant

Today the Supreme Court granted review in Masterpiece Cakeshop v.  Colorado Civil Rights Commission. This is an important — and dangerous — case for civil liberties. It involves a bakery owner who refused to bake a custom cake for a gay wedding, and Justice Kennedy may well be the swing vote. I have three initial thoughts:

First, don’t let anyone tell you that this case is about status-based discrimination. The bakery is no more discriminating against gay people than a baker discriminates against white people if he declines to bake a Confederate flag cake. The baker bakes cakes for gay customers. He didn’t want to lend his talents to send a specific message — namely, approval of gay marriage.

Second, don’t let counterfactuals dissuade you from embracing liberty. A number of people are asking whether the state should “let” a baker decline to bake a cake for an interracial marriage. Here’s the bottom line: Creative professionals should never be required to lend their unique talents to express any form of message they dislike. Don’t make black lawyers oppose civil rights, don’t make liberal fashion designers design clothes for conservative politicians, and don’t require racists to design cakes for interracial couples. Some people use liberty wisely. Some people abuse liberty for immoral ends. But we can’t limit liberty only to the wise and just. 

Third, if Justice Kennedy views this case primarily through the LGBT lens, then the First Amendment may well lose. Kennedy is obviously proud of his long line of LGBT-friendly precedents, and that pride has even led him to a relatively rare First Amendment misstep, so it will be critical to explain to him (and the other justices, of course) that this isn’t a case about “discrimination” but rather about forced speech. Framing matters, and the other side will wrongly frame the case as raising the specter of Jim Crow. The right framing is found in the First Amendment. 

My Twitter timeline is already filling with people talking about this case — with far more heat even than the Supreme Court’s travel ban decision. Expect a building media frenzy, one dominated by allegations of hate and bigotry. The sexual revolutionaries are butting heads with the First Amendment. May free speech prevail. 

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