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The Supreme Court cake case has an easy answer

Dana Milbank on

WASHINGTON -- There will come a time, hopefully before long, when it won't be legal to discriminate against gay people any more than it would be to deny goods or services to African-Americans, women or the disabled.

But we're not at that point yet. Hence the need for Tuesday's food fight at the Supreme Court.

On the justices' plates: whether a baker can refuse on First Amendment grounds to make a cake for a gay wedding because it offends his Christian beliefs. Layered throughout the oral argument: Is food speech? Or is it, well, food?

Kristen Waggoner, arguing for Masterpiece Cakeshop of Colorado, made the creative argument that the Christian confectioner "intended to speak through that cake" and that when the cake maker bakes, "he is creating a painting on that canvas that expresses messages" -- and is therefore covered by the First Amendment.

Trump administration Solicitor General Noel Francisco, also arguing for the cake maker, said that the first question was whether "the cake rises to the level of speech." He gave no indication that his pun was intended.

To the casual consumer of cakes, it's obvious that cake does not rise to the level of protected speech. Cake is dessert. Or possibly breakfast, if in muffin form. But for a Supreme Court that has determined that corporations are people, it is not settled law that cake is food.

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This raises the possibility of other goods and services being denied to gay people by those who cite their free-speech and free-expression-of-religion rights -- just as Jim Crow merchants did when refusing to serve African-Americans a half-century ago.

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

Yes, Waggoner answered, "if they are custom-designed arrangements."

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

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