Supreme Court rules in favor of Colorado baker who refused to create a wedding cake for gay couple

And with the stroke of a pen, the definition of “art” has expanded to include decorative wedding cakes. The decision cracks open a door for other small businesses that provide creative services to assert their free speech rights by denying those services to certain groups of people against which they harbor moral objections.

Kennedy acknowledges that decorated wedding cakes, though lovely, may never hang on the walls of the Met. “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protective speech.” But he adds: “This is an instructive, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. “There is much in the Court’s opinion with which I agree,” writes Ginsburg. She goes on to cite portions of the majority and concurring opinions that conclude that religious and philosophical objections don’t typically allow business owners to deny equal access to goods and services, that the state of Colorado is allowed to protect gay people in the same way it protects other groups of people, and that gay people should be spared “indignities” when they try to buy things on the open market. Yet, she writes, the parts of the majority opinions she agrees with should have lead to a ruling in favor of the soon-to-be-married couple, not the baker selling them the cake. Of the lines she sampled from the majority opinions, she writes “All of the above-quoted statements point in the opposite direction.”

As Bloch wrote for The New Food Economy in December, the ruling is significant for other small business owners, including wedding photographers and florists, who have been waiting in the wings to see what the Supreme Court rules. Though their arguments previously have not held up in the lower courts, this decision may precipitate a reversal.

“I think that’s a dangerous precedent to set,” Danielle Weatherby, a law professor at the University of Arkansas, told Bloch in December. “I don’t mean to sound dramatic, but it could lead to a system where a large portion of service providers won’t serve a particular group of individuals.”