Human Rights Campaign representatives held a brief press conference outside the U.S. Supreme Court prior to delivering an amicus brief in support of equality and gay couples in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, on Monday, October 30, 2017.

Sometimes a cake is just a cake, though at least one side in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission would have the U.S. Supreme Court decide otherwise. The basic facts in this now-notorious litigation begin with a same-sex couple entering a storefront near Denver, Colorado, to purchase a cake for a party celebrating their wedding. The couple could not be married in Colorado, which at that point had not recognized same-sex marriage, so they were to be married elsewhere and then return to their home state for the party. The bakery was open to the public to sell wedding, birthday and other specialty cakes. Though the cakes could be plain or fancy, Masterpiece took pride in creating elaborate icing and other 3-D or painted decorations for their products. When the couple asked to purchase a cake for their wedding party in Colorado, Masterpiece refused, no questions asked. The couple never got to the point of selecting a decoration, a theme or the specific icing and color combinations to be applied to a baked combination of flour, eggs and related ingredients.

Colorado’s public accommodations law prohibited discrimination on the basis of sexual orientation. So, the couple filed a complaint with its Civil Rights Commission. Siding with the couple, the commission ordered the merchant to cease discriminating by refusing to create cakes for protected classes of people, to educate its personnel regarding the public accommodations law, and to report its compliance each year. The Colorado court reviewing the commission was highly skeptical of the argument that baking a cake conveyed approval of same-sex weddings and thus a form of expression protected by the First Amendment; a simple disclaimer of such intent could be posted on the website and front window.

In the Supreme Court, the bake shop and its owner posed the following question:

Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.

They argued that the commission’s order was a violation of their First Amendment right of expression (not religion), which (Petitioners said) did not allow the government to compel them to employ their artistic talents to convey a message—favoring same-sex marriage—with which they disagreed on religious grounds. In briefs filed with the court, creating a wedding cake was described as artistic expression, and weddings were described as inherently religious ceremonies. Petitioners were said to believe, therefore, that creating a wedding cake is assisting or participating in a religious ceremony. Forget that cakes are not eaten or displayed at a religious ceremony of a wedding; forget that the wedding of the couple in this case was to take place out of state (and possibly not in a religious ceremony); and forget that Petitioners did not even know whether the couple might want a generic but nicely decorated cake. Petitioners simply did not want to be compelled to be complicit in the couple’s sin or, by their artistic expression, lend their approval to a wedding they considered against Biblical teachings.

Petitioners relied on cases such as Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), in which the court held that Massachusetts’ public accommodations law did not compel the organizers of a parade to include marchers from an LGBT group who would by their participation “be imparting a message the organizers do not wish to convey.” Respondent took comfort in cases such as Employment Division v. Smith, 494 U.S. 872 (1990), in which a law of general applicability prohibiting the ingestion of peyote could be invoked to deny unemployment benefits to religiously motivated users, noting “’Conscientious scruples have not, and in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”

In the oral argument in the Supreme Court on Dec. 5, 2017, the justices and counsel tried to understand what legal principle could be applied, or extracted from the facts, to draw a line on one side or the other of the current dispute.

If Petitioners did not know what if any decoration might be applied to a cake sold to the couple, could the court possibly decide that simply selling a generic cake, no matter how delicious or pretty the icing and butter-cream flowers might be, would give rise to a protectable First Amendment interest regarding artistic expression that might trump public accommodations law? We think not. If that were so, would the same line apply to non-white couples or interracial couples, both of whom also are protected from discrimination by state statute and Supreme Court constitutional precedent, just because the baker was morally opposed to such marriages? Some seemed to argue that same-sex couples are due a lesser degree of protection, an argument with far-reaching, dangerous consequences for other states’ public accommodations laws. And why would a generic wedding cake—which Petitioners do not offer for sale pending a resolution of the case—be different from a birthday cake—which they do continue to sell? Because the differences between a wedding reception for a non-religious wedding and a birthday party are constitutionally cognizable?

We suggest that the court should employ its traditional rule of limiting its opinion to the question before it, and reach the following conclusion: merchants subject to a state public accommodations law may not refuse service under these circumstances. No decision should rule on hypotheticals as to when a cake design may become protectable artistic expression; judges should decide cases based on the facts in front of them. Where a couple in a protected class simply walks in a store otherwise open to the public, no merchant should be able to turn them away, no matter how great an artist he or she might be and no matter how much he or she might fear the possibility of becoming complicit in their supposed sin by the designs that might be requested. Courts should not make distinctions on which protected class “deserved” greater or lesser protections, since the state’s interest in protecting all is the same.

To try to create a legal principle governing a cake with a design that was never requested and never made, seems to ask too much of the legal process. When a case that actually presents the issue described in the petition for certiorari comes, if it comes, the court can look at it based on facts, not hypotheticals.