John Corvino writes, of the narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission, that the Supreme Court punted on many of the substantive issues:
What counts as protected speech, and why? Does it matter if the cake is custom? If it has words on it? How do we distinguish messages that are integral to one’s identity as a member of a protected class and those that are incidental to it?
We suspect it does matter if the cake is custom, but that the focus on messaging is a red
velvet herring. To our minds, this isn’t primarily an issue of protected speech, at least in the sense being widely discussed in connection with the recent SCOTUS decision. Sherif Girgis and Robert P. George argue that custom wedding cakes bear expressive content, in particular, the recognition that the event the cake figures in is a wedding. We are skeptical about the prospects for this argument. As Chief Justice Roberts observed during oral argument, it’s hard to see why whether a cake is custom or not would make an expressive difference with respect to acknowledging the wedding as such. But the notion that a cake carries such expressive content strikes us as highly dubious in the first place. Setting aside any text or wedding imagery (which we assume would be a little too déclassé to be on offer in the first place from a cakeshop with ‘Masterpiece’ in its name), a wedding cake is just a really awesome cake. There is no systematic way to distinguish wedding cakes from other cakes on the basis of their intrinsic features. Wedding cakes are typically multi-tiered, but many high-end wedding cakes are one-tiered and there are plenty of other show-stopping alternatives to the multi-tiered cake. And, of course, multi-tiered cakes are often used to celebrate other occasions (including mermaid parties!). Continue reading