MORE CAKE?

The New York Review of Books - - Contents -

To the Edi­tors: Given David Cole’s long-stand­ing in­volve­ment in the case of Mas­ter­piece Cakeshop v. Colorado Civil Rights Com­mis­sion, it is odd and a lit­tle dis­turb­ing that he avoids even men­tion­ing core is­sues of the case in his re­cent piece, “This Takes the Cake” [NYR,

July 19]. Cole never once men­tions the is­sue of com­pelled speech. As Cole de­scribes it, the case hinged on whether Mas­ter­piece Cakeshop’s pro­pri­etor, Jack Phillips, had a right to refuse to sell a prod­uct (a cake) to a same-sex couple, and whether Phillips and his de­fend­ers could le­git­i­mately find a “right to dis­crim­i­nate” in the First Amend­ment. In Cole’s read­ing of Jus­tice An­thony Kennedy’s “gen­eral rule,” the pro­vi­sion of equal ac­cess to goods and ser­vices plainly re­quired Phillips to sell the wed­ding cake to the same-sex couple.

But this case has never been about such a small and lim­ited ques­tion. It is, of course, not pos­si­ble to sell a cake that has not yet been made. As Cole knows quite well, cus­tomers of any race, gen­der, creed, or sex­ual ori­en­ta­tion have been free to pur­chase cakes from Mas­ter­piece Cakeshop. The same-sex couple in this case did not merely wish to buy a cake. They asked Phillips to cus­tom-de­sign a cake with a highly spe­cific theme and a mes­sage, cel­e­brat­ing the mar­riage of two men. Be­fore sell­ing the cake to the couple, Phillips would have had to put his cre­ative and aes­thetic tal­ents to work to pro­duce an elab­o­rately de­signed, highly ex­pres­sive prod­uct con­vey­ing a mes­sage in which he did not per­son­ally be­lieve.

The mak­ing of an elab­o­rate wed­ding cake with a stylish and prom­i­nent visual com­po­nent is, in­deed, a highly ex­pres­sive un­der­tak­ing, and in that re­spect is sim­i­lar to other me­dia such as writ­ing, painting, or sculp­ture. It may help to clar­ify the is­sue if we take an anal­ogy from one of those other arts. Sup­pose that a publisher ap­proaches a pop­u­lar writer of spy thrillers and makes him an of­fer for a novel about a les­bian couple. The au­thor replies that this isn’t an area in which he has any in­ter­est or ex­pe­ri­ence, and he must de­cline. Ac­cord­ing to Cole’s logic, the au­thor of spy thrillers is in vi­o­la­tion of the gen­eral rule for “re­fus­ing to sell” a prod­uct, and should be sued for il­le­gal dis­crim­i­na­tion. But of course, the au­thor in this hy­po­thet­i­cal ex­am­ple is not com­mit­ting any kind of il­le­gal dis­crim­i­na­tion. Nor would those who came to the au­thor’s le­gal de­fense be look­ing to find a “right to dis­crim­i­nate” within the First Amend­ment. They would cite First Amend­ment lan­guage and prece­dent to make the sim­ple point that, just as the amend­ment pro­tects cit­i­zens who pub­licly ex­press views and ideas from be­ing pun­ished for what they say, it also pro­tects peo­ple from be­ing forced to en­gage in speech and ex­pres­sion that they do not wish to en­gage in. Cen­sor­ship and com­pelled speech are both ex­plic­itly wrong and un­con­sti­tu­tional un­der any read­ing of the First Amend­ment, and Mas­ter­piece Cakeshop is a quin­tes­sen­tial First Amend­ment case. In a free so­ci­ety, we do not tell a cre­ative artist—whether a writer, film­maker, or a maker of cus­tom-de­signed cakes— what the con­tent of his or her work will be. To make these sim­ple points is to de­mol­ish Cole’s re­duc­tion­ist and one-sided treat­ment of Mas­ter­piece Cakeshop v. Colorado

Civil Rights Com­mis­sion. One re­ally might have ex­pected a more so­phis­ti­cated and nu­anced anal­y­sis from no less an au­thor­ity than the na­tional le­gal di­rec­tor of the ACLU.

Michael Wash­burn New York City

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