In 2012, a gay couple (Charlie Craig and David Mullins) attempted to purchase a wedding cake from Lakewood’s Masterpiece Cake Shop. Jack Phillips, the owner, refused to sell them one on the grounds that it would make him complicit in what he saw as a moral wrong, arguing that making a wedding cake for gay people amounted to endorsement of gay marriage. He would have been happy to sell them birthday cakes and other confections, he maintained, just not something that implicated him morally.
In 2014, a man named William Jack attempted to purchase a cake from Denver’s Azucar bakery, owned by Marjorie Silva. What he ordered was a cake shaped like a bible. He wanted this cake to be adorned with a frosting picture of two grooms covered by a big red X that bore the legend “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22”. Silva offered to sell Jack a bible-shaped cake and a pastry tube so that he could create any decoration he wished, but she refused to embellish the cake as he wanted.
Each baker was accused of discrimination. Each invoked, in one way or another, the right not to have to express, in cake form, a message with which they had moral issues. The Colorado Civil Rights Division ruled in 2015 that Silva’s refusal did not amount to religious discrimination. While the U.S. Supreme Court ruled in favour of Phillips in the earlier case, it did so not on the ground that he wasn’t discriminating on the basis of sexual orientation, but on the ground that members of the Colorado Civil Rights Commission expressed views hostile to Phillips’ religion in the course of proceedings.
What interests me most is the claim of complicity in a moral wrong on the part of both the bakers above, and whether it might be possible to accede to Silva’s claim while rejecting Phillips’. I think a case can be made for that, but contentions about complicity may turn out to be more complicated than it initially seemed. First, Silva wasn’t refusing to sell Jack a cake, she just refused to decorate it in the manner he requested. So, she wasn’t refusing a service available to any other customer. Phillips was refusing a service available to other customers. He did not offer Craig and Mullins an unembellished three-tier cake and give them the online address of a manufacturer of tiny grooms, so that they could add their own gay-themed embellishments. It was making a cake for a gay wedding that bothered him, and so he declined to do it. The question of decoration was not even raised before Phillips unequivocally refused.
What level of involvement in the production of a themed cake might be held to constitute complicity in the aforesaid theme? Phillips claimed that “I’m being forced to use my creativity, my talents and my art for an event – a significant religious event – that violates my religious faith” (The New York Times, 16 September 2017). So, the argument from complicity in conveying a message to which one morally objects might be buttressed by the claim that one’s artistic impulses are suborned to purposes one considers wrong or despicable. There does seems to be a difference between simply being asked to print a message with which one disagrees on a T-shirt, and being asked to design or create something that forcefully conveys that message: Hitler with a halo, say, or Hillary Clinton with devil’s horns.
Indeed, there even seem to be significant differences, with respect to the complicity issue, among the following: supplying materials that allow customers to create hateful messages on their own (fabric markers and blank T-shirts, say, or a sheet cake and a frosting tube), agreeing to print the hateful message on T-shirts for them, or agreeing to create hateful-message art to convey the message more effectively than the customers might do on their own. There are difficulties that thankfully do not arise in the case of cake production that do arise in the case of printing services and publication. These will not be investigated here, though it seems clear that there are at least some arguments that could be made about the connection between complicity and enabling expression.
What does seem clear is that there is a strong link between allegations about complicity and the involvement of artistic or creative activity. Whether or not cakes count as art, cake making and especially cake decorating can be both creative and artistic in the broader sense (as can the creative manipulation of ingredients in order to obtain desired flavours). But to make the same kind of case for Phillips that was made for Silva, these artistic and creative endeavours would have to be mustered specifically in order to convey the message in the conveyance of which the artist did not wish to be complicit. That does apply to Silva, since she was asked to decorate a bible-shaped cake subversively, to create, in other words, the ornamentation that conveyed the message of which she disapproved. It does not apply to Phillips, who was asked to produce a wedding cake with no gay-themed decorations. Phillips’ case might be more comparable to Silva’s if his gay customers had demanded that he create a wedding cake bedecked with entwined penises covered in rosebuds. As this was not the case, the additional claim of having one’s cake-making artistry enlisted to immoral ends does not appear to hold water.