It’s the holiday season, and the air is full of baking. Magazines are thick with Christmas cookie recipes, the hot urban trend is the donut boutique, and Oregon’s booming marijuana tax revenues suggest that the whole state is getting baked.
And the Supreme Court is talking cake.
The court’s unusually layered proceedings earlier this month addressed the case of Masterpiece Cakeshop, a Colorado baker who cited his religious beliefs in refusing to create a cake for a gay wedding – an episode closely resembling Oregon’s own Sweet Cakes by Melissa case. The Oregon proprietors were fined $135,000 by labor commissioner Brad Avakian, and their appeal is now before the Oregon Court of Appeals. When the Supreme Court swings its own rolling pin on the issue, it could set the pastry precedent.
The Oregon argument has been largely about religious freedom, and whether you can be obliged to bake a cake for an event you would refuse to attend. The Supreme Court argument was largely about art.
You might rather have judges talking cake.
Religious freedom did feature in the Masterpiece case. But the Colorado baker argued strongly that the controversy was an issue of freedom of expression, that he was an artist who expressed himself in his cakes, and that the government could not tell him what to say, in print or in buttercream.
Masterpiece Cakeshop’s attorney, Kristen K. Waggoner, said her client was an artist who creates “a temporary sculpture” when he makes a wedding cake. Slicing the argument even thinner, she declared that her client would have no problem with a gay couple coming into his shop, buying a cake off the shelf and using it as a wedding cake; it was only creating a custom wedding cake that cut across his artistic freedom.
And while other legal cases have treated bakers’ concerns as similar to those of florists or photographers who might want to send regrets to a gay wedding, the Colorado claim saw the baker as distinct from the candlestick maker. While the baker has rights of expression, argued Waggoner, “the tailor is not engaged in speech, nor is the chef engaged in speech.”
Justice Elena Kagan gagged on the distinction. “Whoa,” she said. “The baker is engaged in speech, but the chef is not engaged in speech?”
Because if a wedding cake is covered under religious liberty, the next demand will be to free the finger sandwiches.
It was all too much for Justice Sonia Sotomayor.
“When have we ever,” she asked, “given protection to a food?”
The artistic expression argument might have particular force in Oregon, where the law takes an expansive view of expression and its protection – the reason Oregon has a planet-leading number of strip joints per capita. On the other hand, nobody’s suggested that a strip joint’s freedom of expression would let it refuse to book a same-sex wedding’s bachelor party.
Or deciding what to serve.
The constitutional cake controversy may raise a fundamental issue, or it might just be a marker of where we are in the same-sex marriage process.
During the debate over the 1964 civil rights act, and in some later debates, legislators agonized over “Mrs. Murphy’s boarding house,” and Mrs. Murphy having to accept boarders she didn’t like into her small, personal space. Fifty years later, we no longer hear much about Mrs. Murphy; maybe she’s retired to an Arizona gated community with a golf course. Now we just assume that discrimination in places of public accommodation is illegal, even to Donald Trump’s Justice Department.
The American public’s attitude toward gay marriage has changed faster than the public image of Bill Cosby. In 2004, George W. Bush ran for re-election in a crusade against gay marriage – it was better than running on the glory of the Iraq war – and a dozen states, including not-quite-as-cool-as-it-would-later-be Oregon, enacted constitutional amendments outlawing the idea. In 2016, with 42 Republican candidates for president, none of them stressed rolling back gay marriage, and several of them even seemed willing to serve as ring bearer.
In a season that’s largely about family gatherings – and, of course, baking—we have nationally reached the understanding that families come in lots of different shapes. Last week in Alabama – Alabama! – voters rejected a Senate candidate who declared that homosexual behavior was “heinous” and should be illegal. There were lots of other reasons Roy Moore lost, but a number of voters seemed to be telling reporters that, you know, someone in their family was gay, and should still be treated like a person.
In 2017, we have finished the argument over gay marriage. That ship has sailed, or you might say, that cake has been baked.
Now we’re arguing over crumbs.
NOTE: This column appeared in The Sunday Oregonian, 12/17/12.