“The Kind of Cake, Not the Kind of Customer”

Abstract

In June 2018 the Supreme Court of the United States decided the case of Masterpiece Cakeshop, in which baker Jack Phillips refused to provide a cake for a same-sex wedding. The Court decided the case on fairly narrow grounds; in particular, it set aside the question of whether Phillips illegally discriminated on the basis of sexual orientation by refusing to sell the same cake to a gay couple that he would sell to a heterosexual couple. Concurring opinions by Justices Kagan and Gorsuch do address that question, however, and in this paper I explore the debate between them. By distinguishing between design-based and use-based refusals of service and then arguing that some use-based refusals are tantamount to discrimination on the basis of protected traits, I argue that Jack Phillips did indeed discriminate on the basis of sexual orientation. I also argue that another baker, who refused to create a “Leviticus 18:22 ‘Homosexuality is a detestable sin’ ” cake, did not discriminate on the basis of religion. I thus side with Justice Kagan against Justice Gorsuch on the question of whether the Colorado commission treated the two bakers inconsistently.