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Dana Milbank: The Supreme Court cake case has an easy answer

Washington • There will come a time, confidently sooner than lengthy, when it received’t be prison to discriminate in opposition to homosexual other people any longer than it could be to disclaim items or products and services to African-Americans, girls or the disabled.

But we’re now not at that time but. Hence the desire for Tuesday’s meals combat on the Supreme Court.

On the justices’ plates: whether or not a baker can refuse on First Amendment grounds to make a cake for a homosexual marriage ceremony as it offends his Christian ideals. Layered all over the oral argument: Is meals speech? Or is it, smartly, meals?

Kristen Waggoner, arguing for Masterpiece Cakeshop of Colorado, made the ingenious argument that the Christian confectioner “intended to speak through that cake” and that after the cake maker bakes, “he is creating a painting on that canvas that expresses messages” — and is due to this fact coated via the First Amendment.

Trump management Solicitor General Noel Francisco, additionally arguing for the cake maker, stated that the primary query used to be whether or not “the cake rises to the level of speech.” He gave no indication that his pun used to be meant.

To the informal shopper of truffles, it’s obtrusive that cake does now not upward push to the extent of secure speech. Cake is dessert. Or in all probability breakfast, if in muffin shape. But for a Supreme Court that has decided that companies are other people, it’s not settled legislation that cake is meals.

This raises the potential for different items and products and services being denied to homosexual other people via those that cite their free-speech and free-expression-of-religion rights — simply as Jim Crow traders did when refusing to serve African-Americans a half-century in the past.

“The person who does floral arranging,” requested Justice Ruth Bader Ginsburg. “Would that person also be speaking at the wedding?”

Yes, Waggoner replied, “if they are custom-designed arrangements.”

“How about the person who designs the invitation to the wedding or the menu for the wedding dinner?”

Justice Elena Kagan made up our minds to play. “The jeweler?”

Possibly, Waggoner reasoned.

“The makeup artist?” Kagan continued.

Waggoner stated that the make-up artist would now not be talking — neither, she responded to Kagan’s additional questions, would the marriage tailor or the chef.

“Whoa!” Kagan pounced. “The baker is engaged in speech, but the chef is not engaged in speech?”

And let’s now not even get into the butcher and the candlestick maker.

The case may move both method, with 4 justices it appears at the cake-is-speech aspect, 4 at the cake-is-food aspect and the inscrutable Anthony M. Kennedy in between. But Kennedy did inform Francisco that his aspect within the case has a “problem,” as a result of “there’s basically an ability to boycott gay marriages. If you prevail, could the baker put a sign in his window: ‘We do not bake cakes for gay weddings’?”

Francisco allowed that the baker may.

“And you would not think that an affront to the gay community?”

Of direction it could be. But legal professionals for the cake baker argued that discrimination at the foundation of race or incapacity is other as a result of it’s in response to “who the person is” — as though being homosexual isn’t who the individual is.

The prime court docket has enshrined the best to same-sex marriage, however neither the court docket nor Congress has secure sexual orientation the way in which they offer protection to race, faith, gender and incapacity. Several states and localities have such rules — together with Colorado, whose legislation is being puzzled within the cake case — however the ones may have little impact if the justices come to a decision that anti-gay discrimination is secure as loose speech.

Hence the slippery-slope questions. If the custom-cake man, the florist and the individuals who design invites and menus can discriminate, “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist,” Ginsburg identified.

Justice Samuel A. Alito Jr. requested about architects.

“Generally that would not be protected,” Waggoner ventured.

Justice Stephen G. Breyer interjected. “So,” he stated, “Mies or Michelangelo or someone is not protected when he creates the Laurentian Steps, but this cake baker is protected when he creates the cake without any message on it for a wedding?”

This is necessary, Breyer stated, as a result of “we want some kind of distinction that will not undermine every civil rights law from the year to — including the African-Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes and buildings.”

Piece of cake: If you’ll be able to’t do it to racial and non secular minorities, girls and the disabled, you shouldn’t have the ability to do it to homosexual other people.

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