Colorado Cake: Is ‘Religion’ driving Legal Discrimination? Not so fast

by Theo Poward

You may be vaguely familiar with the Masterpiece Cakeshop v. Colorado Civil Rights Commission case which is currently pending before the US Supreme Court.

In July 2012, same-sex couple Charlie Craig and David Mullins from Colorado visited Masterpiece Cakeshop in Denver to order a custom wedding cake for a celebration of their marriage. Masterpiece’s owner Jack Phillips, declined, informing the couple that he did not create wedding cakes for same-sex marriages due to his religious beliefs although the couple could purchase other baked goods in the store. Craig and Mullins left the store without discussing details of the cake design. Craig and Mullins filed a complaint to the Colorado Civil Rights Commission under the state’s public accommodations law, the Colorado Anti-Discrimination Act, which prohibits businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

Craig and Mullins’ complaint resulted in a lawsuit, Craig v. Masterpiece Cakeshop, which they won. Phillips appealed that ruling and it has ended up going all the way to the Supreme Court.

No Such Thing as a ‘Religious’ belief.

It is clear that Phillips sincerely believes gay marriage to be a sin. This belief has been categorised as ‘religious’ because Phillips connects it to his Christian faith. However, in both Christian Theology, and the American legal system, matters of conscience are seen as a good enough reason to exempt yourself from obeying a specific law; what classes a matter of conscience as religious or not has never been made clear.

In other words, ‘Religious’ in this case simply seems to mean ‘strongly/sincerely held’ and nothing more. In this model any belief is religious so long as it is held with a strong enough conviction. The debate is not actually about religion; it is about what counts as discrimination; and what counts as ‘artistic expression’.

The Arguments

The arguments do not involve ‘religion’ at all. Probably because it is a useless category. The debate surrounds what service is being denied and is it being denied because of the recipient’s identity or their actions.

  • The first line of argument is that specially making a cake for a specific occasion counts as artistic expression. The baker highlighted that he was happy to sell the couple any other form of baked goods from his store, but personally making a cake would mean that he was compromising his conscience in order to express something artistically that he didn’t believe in.
    1. The parallel that this argument tries to draw is that you shouldn’t be able to force an artist to perform for you if they sincerely don’t want to and you are able to have a performance from somebody else. Nobody has the right to demand that their favourite artist perform for them. Phillips has expressed how he feels pained at having to choose between his faith, and his business (custom cakes make up 40% of his profits.)
      1. The counter to this has been to question what the limits are when defining something as ‘artistic expression’. Can a makeup artist, or a jeweler, or a chef, deny somebody service because they consider their work ‘art’? What about a teacher or a surgeon?
  • The other dimension of the argument addresses the question of why did the baker refuse service? He argues that he has no problem serving gay people, it is the fact that his work would be used at a gay wedding that he disapproved of. He pointed out that he has refused to make cakes for Halloween events, bachelor and bachelorette parties, he has also refused to bake a cake with an anti-LGBT message on it. He does not want his work to be used at events that he feels go against his conscience.
    1. The argument is that refusing to make a cake for a gay wedding does not equate to discrimination against gay people, because it is the event that he does not wish to be connected to: the people’s conduct, rather than the people themselves.
      1. The counter to this is that only gay people have gay weddings, so refusing to serve gay weddings is discriminating against gay people. Another way of looking at it is that marriage is a right for gay people, enshrined in law, and cannot be separated form who they are. Just as you can’t argue that you approve of gay people but disapprove of gay people having sex, holding down employment, or eating; you cannot maintain the distinction between gay people and gay practice.


Personally, I don’t find either of the arguments convincing. I believe that the baker should either treat his gay clients the same as all the others or he should get out of the business. Non-discrimination based on sexual orientation is the law of the land in Colorado, and he should be required to follow the law of the land.

The point is that an entire discussion of the main points of the case does not require any recourse to ‘religion’. Painting the discussion as ‘religion’ versus ‘secularism’ doesn’t add anything to the debate, and makes it seem like religious people are naturally going to side with the baker. This is simply not the case.

There doesn’t seem to be any reason to hold on to a separate category of ‘religious’ beliefs. I hope that we can wake up and finally drop this false distinction. There is a consistent cry from both sides that this case is not about cake. We should bear in mind that it is not about religion either. This case is about discrimination. This is another case where the term ‘religious’ has proven itself to be useless. We should wake up and stop using it.

SCOTUS APRIL 2015 LGBTQ 54663” by Ted Eytan is licensed under CC by SA 2.0