The Most Challenging Issue in the Masterpiece Cakeshop Case Involves the “Alternative Facts.”

On December 5, 2017, Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commision was argued before the United States Supreme Court. For those unfamiliar with the name, this is the case in which Jack C. Phillips, the owner of Masterpiece Cakeshop, LTD and its cake designer and creator refused to design and create a specialty cake for Charlie Craig and David Mullins’ wedding because doing so violated his sincerely held beliefs that marriage should be between a man and a woman.

This issue is “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”

Having read the complete transcript from the hearing, I must admit that Phillips has a legitimate point, in my opinion, depending upon what actually occurred in this particular case.

According to both David D. Cole, who argued on behalf of the Craig and Mullins, and Frederick R. Yarger, Solicitor General, Denver, Colorado on behalf of the Colorado Civil Rights Commission, Phillips refused to sell them any wedding cake because they were gay. As Yarger explains it, Phillips said “that all of his wedding cakes are custom-made” and that he therefore cannot be forced to make any wedding cake for the wedding of a same-sex couple.

However, as Kristen K. Waggoner, who represented Masterpiece and Phillips, explained the situation, Craig and Mullins “came in and they requested a custom cake for their wedding. At that point, they brought in a folder with all kinds of designs they wanted to discuss and ended up purchasing a rainbow-layered cake.”

As such, a factual dispute exists as to what actually occurred in this particular case.

What is clearly set forth in the transcript, is that Phillips would be in violation of the law if he refused to sell Craig and Mullins any wedding cake for their wedding because they were a gay couple. Regardless of what actually occurred in this particular case, I can guarantee that the United States Supreme Court will not decide the case such that Phillips or any owner of a non-religious based business can refuse to sell products or services to a person or couple because of their sexual orientation.

Since this case specifically involves a cake shop, let’s discuss cake bakers and the wedding cakes they design and create.

Wedding cakes don’t typically have the names of the bride/groom, bride/bride, or groom/groom on them. Rather, they have wedding cake toppers placed on the top of whichever cake is selected for the wedding. Furthermore, there is no requirement that the wedding cake topper be purchased from the bakery. In fact, a great many people purchase wedding cake toppers online.

If one member of a gay or lesbian couple purchased a non-specialty wedding cake from a cake baker and indicated that they were going to purchase the wedding topper online, how would the baker necessarily know that the cake they were hired to design and create was for a same-sex marriage?

For goodness sake, when I was in law school, my study partner was getting married. She asked me to go cake tasting with her at various bakeries in Los Angeles County. Unless we told them otherwise, the people working at the various bakeries might have assumed that the two of us were marrying.

More recently, I again went cake tasting with a dear friend who was getting married. Her fiance’ lived in New York and was unable to be in Los Angeles to go cake tasting. Once again, the people at the bakeries may well have assumed that the two of us were marrying. In fact, my friend clarified the confusion on more than one occasion.

In all reality, it’s very possible to purchase a wedding cake without the baker knowing the whether the couple marrying were of the opposite sex or the same-sex. The baker would only know such information if someone informed them of such, if they required the names and genders of the future spouses, if they made assumptions (which could well be wrong), and if they previously knew one or both people getting married and were aware of their sexual orientation.

Unless we’re in Fantasyland at Disneyland, let’s stop pretending otherwise. Let’s discuss the real world — the world in which we all live. Absent highly unusual circumstances, designing and creating wedding cakes by no means forces the baker to take part in any given wedding.

As Justice Sotomayor asked, “Let’s assume this couple did come in and wanted the rainbow cake. And this gentleman [Phillips] says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding. So what are the difference in treatment?”

Ironically, “the rainbow flag was popularized as a symbol of the gay community by San Francisco artist Gilbert Baker in 1978.”

As such, I must agree with Waggoner that a rainbow-layered cake certainly is an expression - at least in my book. Therefore, if Phillips hadn’t designed and created any rainbow-layered cakes in the past and considering the association between rainbows and the gay community, if Craig and Mullins requested that Phillips design and create a rainbow-lawyered wedding cake for their marriage, I see nothing wrong with Phillips refusing to create such a cake, considering his sincerely-held religious beliefs.

I disagree with Gen. Noel J. Francisco, Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, that Phillips “could say he does not make custom-made wedding cakes for gay weddings.”

Justice Ginsburg, in my opinion, was correct when she said, “if he makes custom-made cakes for others, he must make it for this pair, but he doesn’t have to write anything for anybody. He doesn’t have to write a message that he disagrees with.”

What Ginsburg is missing is that if Phillips were forced to design and create a rainbow-layered wedding cake for Craig and Mullins or any other same-sex wedding, he would be “writing a message that he disagrees with.”

While I realize that Masterpiece’s website states, “Custom designs are his specialty;” asking Phillips, who doesn’t support same-sex marriage because of his sincerely-held religious beliefs, to design a rainbow-layered specialty cake for a same-sex marriage goes too far in my book because of what the rainbow represents for the gay community.

There are, however, an infinite number of possible custom-made wedding cakes could be designed and created that would not force the baker to write a message with which he disagrees. In fact, those same custom-made wedding cakes could be used equally well for either a opposite-sex or same-sex marriages. The only difference would be the wedding cake topper, which can be purchased elsewhere.

Justice Alito was correct when he said, “the [Colorado Civil Rights] Commission said: It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”

You can’t have it both ways, as Alito points out.

Assuming that Phillips did not do as Cole and Yarger contend, Justice Kennedy was spot on when he said, “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” However, if Phillips did as Cole and Yarger contend, it was not the state that has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs, but Mr. Phillips who was neither tolerant nor respectful of Craig and Mullins.

Context is key. A major problem with this case is the existence of “alternative facts.” If Phillips prevails in this case, it’s because the majority of the Supreme Court Justices believe his rendition of the facts. However, if the Colorado Civil Rights Commission prevails, it’s because the majority of Justices believe that, one way or another, Phillips refused to design and create any wedding cake for Craig and Mullins, even from among those shown in the wedding cake section of Masterpiece’s website. Regardless of which of the “alternative facts” the majority of Justices believe, it doesn’t mean that’s what actually occurred. Only those present at the time of the incident know what really occurred, and, it’s by no means unheard of for judges, justices and juries to make factual findings that are inconsistent with that which actually occurred.

I certainly understand and appreciate the point that Masterpiece is a corporate entity and that people - not entities - have religious beliefs. However, it’s not the entity that designs and creates the cakes. If those cakes convey a message with which the owner, designer and creator disagrees, such as the special meaning associated with a rainbow-layered wedding cake, I don’t happen to believe that the business entity distinction should make any bit of difference.

People are entitled to their beliefs, regardless of how sincerely-held they may be. However, a line must be drawn when the beliefs of one person or a group of people harm another person or group of people. Whether or not Phillips’ beliefs harmed Craig and Mullins depends upon which rendition of the “alternative facts” actually occurred.

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