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SCOTUS Reconsideration   Leave a comment

Is baking (or at least decorating) a cake an art? If someone can be compelled to decorate a cake in violation of his/her religious beliefs, does that violate the concept of freedom of faith?

Contrary to popular belief, the Supreme Court never dealt with that issue in the Masterpiece Cakeshop case. It declined to deal with these issues, instead ruling narrowly in the baker’s favor because the Colorado State Civil Rights Commission displayed animus toward his religious beliefs. And Elena Kagan felt the question of whether the baker had refused to sell the couple of custom cake or any cake remained unanswered.

The decision is causing the Washington Supreme Court to go through the motions of reconsidering the Arlene’s Flowers case in light of Masterpiece, but there’s an Oregon case involving another baker that has reached the Supreme Court’s doorstep. Melissa and Aaron Klein are practicing Christians who owned and operated a bakery where they made and sold custom wedding cakes. An administrative law judge fined them $135,000 for refusing to make a wedding cake for a same-sex couple, putting them out of business. The Kleins have provided proof that they had gladly served the couple in the past and merely objected to helping celebrate this particular ceremony, but an Oregon state appellate court upheld the fine.

Living according to one’s own conscience is the foundational principle of a free society, which is why freedom of expression is acknowledged by the First Amendment, which doesn’t just recognize your right to say what you wish, but it bars government from compelling you and I to say something you don’t agree with.

Cake decorating is definitely a creative pursuit, an expressive art form. If bakers are artists, they cannot be forced to convey messages that violate their beliefs, whether secular or religious values.

The courts have essentially been saying that only people who agree with same-sex marriage should be allowed to operate businesses related to weddings. That turns freedom of expression into a hollow principle. 

Although quite similar to Masterpiece Cakeshop, the Kleins’ case is neater, with fewer distractions unrelated to the core question of expression. For starters, there is no allegation that the Oregon Bureau of Labor and Industries showed anti-religious animus. Moreover, the Kleins did not sell off-the-shelf cakes to the general public; they created only custom cakes.

The Cato Institute is the only organization in the United States to have filed Supreme Court briefs supporting same-sex couples seeking to get married and vendors who don’t want to participate in those weddings, has now filed a brief supporting the Kleins’ petition to the US Supreme Court.

The Court should take the case to clarify that the First Amendment protects people from having to convey messages or express support for ceremonies with which they disagree. Klein v. Oregon Bureau of Labor & Industries presents an inquiry into the scope and nature of expression itself—and much like a good cake, we hope that the Court finds these issues too enticing to pass up.

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