Littwin: If tolerance is the issue in the Masterpiece case, how could the same-sex couple lose?

A man and a woman walk into a bakery and ask the baker to make them a wedding cake.

The baker asks the couple if they’ve had premarital sex.

The man and woman tell him it’s none of his business.

The baker says his religious beliefs prevent him from using his artistry to make a wedding cake for people who have had sex outside marriage. They can buy brownies or cupcakes or upside down cakes, but unless he knows they haven’t had sex outside marriage, he won’t bake them a wedding cake.

Farfetched? Of course, it’s farfetched. It’s absurd.

A mother and her 13-year-old son walk into a bakery and ask the baker to make them a cake for a bar mitzvah.

The baker says that his religion teaches him that Jews killed Christ. He can’t, therefore, use his artistry to make a cake for them celebrating a Jewish rite, even if the mother and son just want him to do a Rockies-themed cake showing Nolan Arenado making a play at third base. He said he can sell them brownies or cupcakes or upside down cakes.

Farfetched? In my long-ago youth, the whole Christ-killing belief was a thing, and it wouldn’t have been farfetched at all.

Two women walk into a bakery and ask the baker to make them a cake celebrating their daughter’s adoption.

The baker says he’s sorry but his religious beliefs prevent him from using his artistry to bake a cake for same-sex couples who adopt. But he’s happy for the little girl to have a cupcake. Heck, he’ll even give her one on the house.

Farfetched? Not so much. Still absurd, though.

A black man and a white woman walk into a bakery and ask the baker to make them a wedding cake.

The baker says his religion teaches him that miscegenation is a sin and so he can’t use his artistry to make them a wedding cake. He is not a racist, he tells them. He has nothing against anyone from any race or religion, but beliefs are beliefs, and his must be respected. He’s happy to sell them brownies or cupcakes or, hey, how about one of those black-and-white cookies.

Farfetched? Not really. Fifty years ago it was illegal in 16 states for mixed-race couples to marry, just as a few years ago, it was illegal in most states for same-sex couples to marry.

If it sounds like I’m pounding you on the head with this, I apologize. But I just don’t see where the Masterpiece cake case argued today before the Supreme Court is much different from any of the other examples. I’m not an expert on the law, but I know discrimination, like pornography, when I see it. And I understand the concept of public accommodation. It’s the concept that changed the Jim Crow laws in the South.

In the Masterpiece case, baker Jack Phillips refused to make a wedding reception cake for Charlie Craig and David Mullins. This was 2012. Same-sex marriage was not yet legal in Colorado, so they were going to Massachusetts to get married — a marriage that wouldn’t be recognized in Colorado — and come home for the reception. In Colorado, importantly, LGBTQ was a protected class against discrimination.

Mullins and Craig and Craig’s mother walked into Masterpiece Cakeshop with a book of potential designs for the cake. But after 20 seconds — everyone agrees to the timeline — Phillips told them he didn’t make cakes for same-sex weddings. He also doesn’t sell cakes for Halloween or, for that matter, for divorce celebrations, which may or may not be a major issue.

They didn’t discuss a design. It wasn’t about what message would be on the cake. There could have been no message on the cake. It was simply that Phillips wouldn’t make any cake, with any design, for a same-sex wedding because he was religiously opposed. And his artistry, his lawyers would argue, made it a free-speech issue. By making a cake for a reception — regardless of the cake’s message — he would be forced to use his artistic talents to endorse same-sex marriage.

Mullins and Craig took the case to the Colorado Civil Rights Commission, which ruled in their favor. And Phillips, standing up for principle, chose not to make any wedding cakes if it meant he had to make them for same-sex weddings.

I read the transcript of the oral arguments, which seemed to rest on two things. The first was whether making a cake is speech, even a cake with no message on it. The second was the always difficult question of when and how to make exceptions for religious beliefs in the public square.

Phillips says he is an artist, like, say, Picasso. And therefore his freedom of expression is protected. In my view, baking a cake is, well, baking a cake. I’m sure it’s hard. I once made a cake for my wife’s birthday from scratch, and it was a disaster, and I only tried two layers. But artistry? Let’s just say in most museums, the only place to find a cake is in the cafeteria.

As the argument went before the justices, Elena Kagan asked how the artistry in baking a cake differed from the artistry in hair styling or flower arranging or a chef preparing a wedding meal. The list goes on, of course. It’s hard to see how bakers are unique in this instance and why a ruling for Phillips wouldn’t open dozens, maybe hundreds, of similar cases for butchers, bakers and certainly candlestick makers. The question isn’t whether Phillips is a bigot, but whether this case would enable bigotry.

As Stephen Breyer put, it would almost be impossible to write a ruling in favor of Phillips that didn’t “undermine every civil rights law” protecting minority rights.

From reading the transcript and from reading court observers, it looks like the usual 4-4, liberal-conservative split with Anthony Kennedy set to cast the deciding vote, just as he did in making same-sex marriage legal. Kennedy seemed first to lean toward the gay couple and then toward the baker. Kennedy and others on the court were worried that the Colorado Civil Rights Commission hadn’t been sufficiently tolerant of religious beliefs in its ruling against Phillips.

Is that really where we are? If the issue is tolerance, I just don’t know how the court could rule against a gay couple that wanted nothing more than a cake to celebrate their love.

Photo byTed Eytan via Flickr: Creative Commons


  1. Pretty good article. Glad you brought up the logical extensions including alluding to the Loving case to show how specious this “religious liberty” argument is. Thanks for caring.

  2. The question is: Can a group of bureaucrats, as they interpret law, force someone to do something that is against their beliefs? IF Mr. Phillips was the only baker in a 50 mile radius, then the state would have to decide which person’s beliefs- in this case the gay couple OR Mr. Phillips – beliefs mattered more. As it stands, the gay couple chose to get their panties in a wad instead of doing what a mature adult would do — go to a different baker who would be glad to take their money.

  3. Our Founding Fathers had the wisdom to separate Government from the practice of Religion, having witnessed the toxic effects of the preceding centuries when mixed.

    Tolerance of religious beliefs and practices, where they do not pose an imposition upon non-believers is the basis of the First Amendment.

    Businesses open to the public are likewise subject to our laws. Whatever you may believe or do belong in your home. Personal beliefs, opinions or practices do not belong in the commercial sphere.

  4. Intolerance for bigotry does not in itself equal bigotry.

    Anyone trying to sell something to the contrary is being intellectually dishonest, most likely due to religious proclivities.

    If Maurice Messenger was unable to convince the SC otherwise, why does Jack feel differently?

    No special rights for Christians.

    The legal precedent here is beyond reproach.

  5. This baker is a classic example of what might be called “toxic Christianity”. Basically fundamentalist evangelicals whose greatest sin is deciding (of their own free will because it makes them feel good) that words in the Bible are literally true.

    Toxic Christianity is a narcissistic, entitled theology that says because I am a devout religious person, I don’t have to follow secular law just like everyone else. Toxic Christianity is responsible for the spate of unconstitutional Religious Freedom Restoration Acts that have spawned in the last 20 years, privileging the religious to flout the law in ways that the non-religious cannot.

    Toxic Christianity says I have a right to force the outside public world to change so that I don’t have to suffer intra-cranial, cognitive dissonance between the progress inherent in an enlightened understanding of evidence-based reality vs. medieval, ignorant, doctrinal dogmatism and superstition.

    Remember, Christian fundamentalists are the people who believe that when Jesus returns, the age of tolerance and pluralism will be over, because Jesus will return with the sword. Those are the exact words of John Piper, an evangelical seminarian (see

    Excuse me, but those are also the words of fascism and pogroms.

    If the Supreme Court rules in the baker’s favor, it will rip a huge hole in the secular rule of law that our nation is reliant upon to avoid sectarian strife in a pluralistic society.

    If Mr. Philips loses, and he should, the name Masterpiece Bakeshop will forevermore be associated with the emancipation of LGBT folks from the harms of ignorance and bigotry, especially religious-based, in the commercial marketplace.

    When will the senseless struggle between the Enlightenment and the Dark Ages ever end?

  6. Littwin owes it his readers to correct something, especially since Littwin claims to have read the transcripts of the oral argument. He writes above that Justice Breyer said a ruling in favor of the baker would “undermine every civil rights law since Year Two.”

    That’s not what the official transcript says. It says “since the year to — including the
    African Americans, …”. Breyer interrupted himself mid-sentence, and changed his thought pattern, as often happens in unrehearsed speech. And it really makes no sense that he would say “the Year Two.” See page 18 of the transcript, at

  7. Doug,

    I didn’t “claim” to read it. I did read it, but must have mistranscribed the transcription. I wondered about that myself and should have checked back. Thanks for the heads up. I will correct the text.

  8. “If the issue is tolerance” Its not about tolerance its going to be about religious freedom which is front in center in not only our constitution but in most of the laws of the Western World. Justice Kennedy alluded to this when he stated: the Colorado Civil Rights Commission seemed “neither tolerant nor respectful of Mr. Phillips’ religious beliefs” when it found his refusal to bake a cake for the gay couple violated the state’s anti-discrimination law. In this case I think that the court will side with the baker because they will determine that religious freedom trumps tolerance.

  9. Nice try Steve…but there is clear legal precedent here that unambiguously states that religious beliefs are not legal grounds for discrimination.

    Why would you want it to be otherwise?

  10. Steve –

    The religious love to play the persecution card. The problem with the sample-size one data point alleging that a member of the Colorado Civil Rights commission exhibited religious animus is that you don’t know what that person might have said or say with respect to a similar case where one religious person discriminated against another religious person. The commissioner might use (or have used) the same language, except it’s not in the record of this case. Yet that would not be an example of intolerance towards the religious, it would be about intolerance towards irrational discrimination.

    The Supreme Court itself once said that a religious right to discriminate against blacks was “frivolous”. That’s literally the worst thing a court can say about some legal argument (worse than “meritless”, and slightly better than “contempt of court”).

    Bad facts make bad law, as the lawyers always say.

    This is not all that hypothetical. Recall there’s another similar case concerning a baker in Oregon (the Sweet Cakes case). She discriminated against a lesbian couple, and had to pay $135K damages (not fines or penalties) to the two people she harmed.

    Immediately the claims of animus and persecution were raised in the right-wing Christian echo chambers (invariably improperly using the word “fine” or “penalized”). But if you actually read the court decision in favor of the civil rights commission there, it mentioned a previous case where the same civil rights commission levied a damages award TWICE as large against a dentist who discriminated against a single Christian. The Christian properly won, because it is illegal for commercial business open to the general public to discriminate against persons on the basis of religion. It’s the same law as the one that protects members of the LGBT community.


  11. The Oregon Sweetcakes case I mentioned in a previous post has now been decided by the Oregon Court of Appeals. Read the long decision in its entirety here:

    It methodically goes through every legal issue and explains why the bakers cannot refuse service to gay and lesbian customers. The baker lost on all fronts except one minor one having to do with a sign in their window (and I think they won that properly).

    The appellate court upheld the damages awards (one for $75K and one for $60K to two people) for emotional distress. And the court explained that such awards are normal and well within the various bounds that occur. It even mentioned (see third paragraph of the decision’s page 564) the dentist case I cited above in the snopes URL, which awarded $325K to a Christian who was harrassed and discriminated against.

    But, as usual, the AP news story in my local paper today mis-characterized the damages award as a “penalty” and a “fine”. It was not, even though these allegedly Christian bakers and their LGBT hate-group ADF lawyers no doubt want to feed their religious persecution complex by mislabeling the damages award that way.

    The Sweetcakes bakers are not being punished or fined by the state. They are merely being required by law to compensate the victims of their discrimination whom they harmed in the name of their private religious beliefs.

    Same goes for Mr. Philips of the Masterpiece Cakeshop.

    You can believe whatever you want theologically, but you don’t get to harm others non-theologically in violation of generally applicable, religiously neutral law. That’s the fundamental contract that protects religious liberty in the US, as explained by Justice Scalia in his 1990 Employment Division Supreme Court decision that regular gets mentioned in all theses cases.

    If the Supreme Court decides in favor of Masterpiece, (not likely, but one never knows) they will have to abandon Scalia’s doctrine in Employment Division v. Smith.

  12. A true Christian must obey God, rather than man, and must suffer mans judgement if different. Jesus was crucified, and believers ever since have also been willing to die or suffer if it came down to it. I believe these business owners are willing to take whatever comes but will not change and love them or hate them they are only excersizing their right as citizens to appeal to the Supreme Court. To me it is only proof that they are true believers and more worried with obeying their God than with what you or I believe.

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