In American parlance a “cake walk” is an absurdly or surprisingly easy task. But this December when the United States Supreme Court hears Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the challenge will be anything but a “cake walk.” In fact, to decide the case, SCOTUS may have to decide whether a “cake” qualifies as a work of art.
The legal fight started when Colorado baker Jake Phillips refused to create a specialty cake for a same sex couple’s forthcoming marriage, claiming such a task would be contrary to his deeply held religious beliefs. This refusal led to a complaint before the Colorado Civil Rights Commission charging discrimination based on sexual orientation, a clear violation of the Colorado’s anti-discrimination law. The Commission agreed with the aggrieved couple and so did the intermediate Appellate Court, finding that supplying a cake did not constitute a “message” in relation to the propriety of same sex marriage. It was, well, like selling a hamburger or some other commodity. The Colorado Supreme Court refused to hear the case but, after much discussion, SCOTUS agreed to hear the matter.
The case, which has a cake at its center, pits the 14th Amendment (equal protection under the law) against the 1st Amendment (the sanctity of religious belief and expression). On the surface, it would seem, regardless of the high court’s spectrum, from liberal to conservative, that there is no right to refuse to sell a product in a public place premised on bias or discriminatory animus.
But here, the baker, Jake Phillips, contends that his cakes are works of art, and that he ought not be compelled to create a work of art, a specialty cake, that violates his religious beliefs. Anything else in the bakery, already made, is up for sale to anyone, Phillips claims. But the line Phillips wants to draw is the right to refuse to create a work of art, a cake. Scores of amicus briefs have been submitted aimed at proving that a cake can indeed be a work of art. One brief is filled with vivid color photos of custom cakes in various exotic shapes.
So what does the Masterpiece cake have to do with insurance issues, the usual subject of my blog? It vividly illustrates how important decisions often turn, not on legal principles, but on vexing questions, bordering on the metaphysical (Is a loss fortuitous? And, yes, can a cake qualify as a work of art?). My prediction: SCOTUS will somehow “ice over” (ouch!) the cake as art issue and affirm the ruling below 5/4, with Justice Anthony Kennedy writing the majority opinion.
And that’s it for this This and That. And to the bakers of the world, amateur and professional, art aside, I like chocolate, lots of it.