By Jessie Miller
“I can’t believe there’s all this fuss over a cake,” a peer of mine lamented after I had spent the past hour rattling on about the recent Supreme Court Case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Masterpiece case originated in 2018, when the owner of a cakeshop, Mr. Jack Phillips, refused to make a custom cake for a homosexual couple’s wedding because of his objection to same-sex marriage based on his religious beliefs. In Colorado, discrimination based on sexual orientation is prohibited by the Colorado Anti-Discrimination Act (CADA). When the couple, Mr. Craig and Mr. Mullins, was refused service, they turned to the Colorado Civil Rights Commission to address this discrimination under the Act. Both the Colorado Civil Rights Commission and the Colorado Court of Appeals ruled in favor of the couple, but the United States Supreme Court reversed the decision. On hearing the facts behind Masterpiece, many people, including my peer, contend that the couple could have easily frequented another bakery to get their wedding cake. They claim that the freedom that consumers have in the marketplace should allow them to circumvent disputes like those presented in Masterpiece. Those who make such an argument fundamentally misunderstand the case; it’s about equality, not cake.
Unwittingly, the critics of Craig and Mullins who insist that they should have gone to another bakery reiterate the widely abhorred arguments put forth by the majority in Plessy v. Ferguson. At stake in Plessy was a Louisiana law that required railway companies to provide separate but equal accommodations for passengers of different races. Plessy was argued just 28 years after the ratification of the Fourteenth Amendment, which guarantees the “equal protection of the laws.”
In his majority opinion upholding the constitutionality of the law, Justice Brown argued that laws requiring separation based on race were not only constitutional, but in no way implied racial inferiority:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it (Plessy v. Ferguson, 1161).
Justice Brown refused to acknowledge the very real impact of discrimination by insinuating that its harms are merely “constructions” devised by Black individuals. These are about the damaging effects of discrimination and the failed promises of equality.
Justice Harlan captured this sentiment in his dissenting opinion in Plessy. In contrast to Justice Brown, he acknowledged that discrimination and the separation of races necessarily imply inferiority. Justice Harlan relied on the Fourteenth Amendment to argue that the Louisiana legislation at issue in the case is unconstitutional. He asserted that the Fourteenth Amendment includes a positive right guaranteeing that all persons be exempted “from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race” (Plessy v. Ferguson, 1162). Throughout his opinion, Justice Harlan emphasized what Justice Brown failed to understand: separate is not equal. Discriminating on the basis of race condemns Black citizens to an inferior status in a manner that is inconsistent with the Fourteenth Amendment’s promises of “equal protection of the laws.”
Though Justice Harlan wrote his dissent in 1896, many of the sentiments captured in his opinion come out in Brown v. Board of Education, argued over fifty years later. At issue in Brown was the desegregation of public schools. Cases in Kansas, South Carolina, Virginia, Delaware, and Washington D.C. had arisen over laws that allowed public schools to be segregated on the basis of race at the state level, despite federal policy that stipulated integration. The plaintiffs in these cases contended that segregation was a clear violation of the Equal Protection Clause of the Fourteenth Amendment, as states were undermining the “equal protection of the law” by actively enforcing discrimination through racial separation in schools. The Court unanimously ruled that the state-sanctioned segregation at issue in the case was indeed a violation of the Fourteenth Amendment. Writing for the Court, Chief Justice Warren struck down the “separate but equal” doctrine that had been crafted in Plessy, and declared that separating students “solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone” (Brown v. Board of Education, 1169). Justice Warren put particular emphasis on “tangible” and “intangible” factors. While Justice Warren conceded that some of the schools were indeed equalized in terms of tangible factors such as buildings, curriculum, and teachers, the fact that they were segregated made them inherently unequal in terms of intangible factors including social equality and inferiority in civil society.
Justice Harlan’s dissent in Plessy and Justice Warren’s opinion in Brown teach us valuable lessons about the intangible harms of discrimination. Those who argue that the homosexual couple in Masterpiece should have looked elsewhere for cake contend that the tangible factors would be the same at another bakery; the cake would likely be just as beautiful and delectable. Yet these types of arguments miss the intangible harms of discrimination. They overlook the inherent feelings of inferiority and pain that come from being told some certain element of one’s identity makes them unworthy of receiving service and equal treatment in public accommodations. They also miss the significance of public accommodations themselves. Public accommodations are fundamentally characterized as places that are open to all comers. Closing the door on certain customers in public accommodations, on the basis of their identities and for religious reasons, undermines fundamental equality in the commercial arena.
Cases such as Bell v. Maryland touch upon the issue of discrimination in public accommodations with regard to race, which provides pertinent precedent for Masterpiece. In Bell, a group of Black students were arrested after conducting a sit-in at a restaurant after they were refused service. Justice Douglas’ concurring opinion powerfully captures the significance of discrimination in public accommodations. He wrote, “why should we refuse to let state courts enforce apartheid in residential areas of our cities, but let state courts enforce apartheid in restaurants?” (Bell v. Maryland, Douglas, concurring). To Justice Douglas, even though the discrimination had been carried out by a private entity, a restaurant, it was still repugnant to the established protections of equal civil rights. Equality is something that can be seen and protected in civil society.
Justice Douglas identified the cascading effects of permitting discrimination in public accommodations. He wrote, “here it is a restaurant refusing service to a Negro. But so far as principle and law are concerned, it might just as well be a hospital refusing admission to a sick or injured Negro” (Bell v. Maryland, Douglas, concurring). While the Masterpiece case may be “just a cake,” it opens a gateway in which the denial of many more services may become permissible. Would we feel comfortable if a supermarket denied a same-sex couple access to food on the basis of their sexual orientation? Discrimination in public accommodations, which is so clearly implicated in the Masterpiece case, has far reaching consequences that should concern us all.
The prolific scholarly and legal debate that surrounds Masterpiece is evidence that the case raises issues that are both nuanced and ripe for disagreement. Certainly, there is room for legitimate discourse surrounding what to do when First Amendment protections of religious exercise and free speech come into conflict with anti-discrimination legislation and the Fourteenth Amendment. Those that support the baker, Mr. Phillips, claim that forcing him to make a custom cake would constitute compelled speech. Critics of Mr. Phillips, on the other hand, cite the fact that the specifics of what would be on the cake were not discussed before the denial of service, and claim that making a cake does not imply moral approval. The essential issue here is the purchase of a cake without discussion of what would be on it. If we fail to recognize the impact of discrimination in public accommodations and allow for the denial of service, we threaten to undermine the very basis of equal citizenship, which requires toleration in America’s commercial republic.