Bakers Can Be Artists, But They Still Can’t Discriminate


Photographer: John Stillwell/AFP/Getty Images

Cake baking is an art. Or, so says a group of professional wedding cake bakers who have filed a friend of the court brief with the U.S. Supreme Court in what promises to be the blockbuster case of the upcoming term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The brief is obviously intended to support the claim of a baker to be exempt from anti-discrimination laws that say he must serve gay customers. It’s all together reasonable to think that a professional baker is an artist. The thing is, that shouldn’t matter. Artists are just like anyone else who has a business open to the public: They have to comply with anti-discrimination laws.

The deep issue in the wedding cake case is the conflict between equality and liberty. From the customer’s standpoint, this is a case about the legal right to be treated equally with anyone else regardless of sexual orientation. From the baker’s perspective, it’s about the right not to implicitly endorse gay marriage by selling a key product for the wedding.

The Colorado state government, which has a law on its books prohibiting anti-gay discrimination, would like to see its laws enforced. To get there, it has to convince the justices that this is a perfectly ordinary instance of discrimination by a business that is open to the public.