Last month, a California Superior Court upheld the right of a baker, Cathy Miller, not to “design or create” cakes intended for same-sex wedding celebrations. Judge David R. Lampe ruled that forcing her to do so would violate Miller’s first amendment rights. A cake in this circumstance is not just a mixture of butter, flour, eggs and sugar designed to appeal to human taste buds, but a symbol, which can be taken to express certain views.
The ruling hinged on the idea that a cake for Miller is an “artistic expression”, and therefore something akin to speech. The court specified that if it had been a “retail tyre shop” refusing to supply tyres to a same-sex couple, anti-discrimination laws would have applied. Equally, a cake prepared earlier would not have qualified — this is why Jimmy Kimmel’s skit on the subject had a waiter offering a lesbian diner one of yesterday’s salads. But because a custom-made wedding cake is a form of “expression”, obliging Miller to fill the order would constitute “compelled speech”, and so violate her rights under the free speech clause.