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The Supreme Court cake case has an easy answer

Dana Milbank on

Francisco allowed that the baker could.

"And you would not think that an affront to the gay community?"

Of course it would be. But lawyers for the cake baker argued that discrimination on the basis of race or disability is different because it is based on "who the person is" -- as if being gay isn't who the person is.

The high court has enshrined the right to same-sex marriage, but neither the court nor Congress has protected sexual orientation the way they protect race, religion, gender and disability. Several states and localities have such laws -- including Colorado, whose law is being questioned in the cake case -- but those will have little effect if the justices decide that anti-gay discrimination is protected as free speech.

Hence the slippery-slope questions. If the custom-cake guy, the florist and the people who design invitations and menus can discriminate, "I don't see a line that can be drawn that would exclude the makeup artist or the hairstylist," Ginsburg pointed out.

Justice Samuel A. Alito Jr. asked about architects.

"Generally that would not be protected," Waggoner ventured.

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Justice Stephen G. Breyer interjected. "So," he said, "Mies or Michelangelo or someone is not protected when he creates the Laurentian Steps, but this cake baker is protected when he creates the cake without any message on it for a wedding?"

This is important, Breyer said, because "we want some kind of distinction that will not undermine every civil rights law from the year to -- including the African-Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes and buildings."

Piece of cake: If you can't do it to racial and religious minorities, women and the disabled, you shouldn't be able to do it to gay people.

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Follow Dana Milbank on Twitter, @Milbank.

(c) 2017, Washington Post Writers Group

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