Supreme Court will hear case of Colorado baker who refused to make wedding cake for same-sex couple

[onenote]

24. The examples you cite are distinguishable

The reason that the government can't force a bookstore to sell Korans is the First Amendment, which protects the bookstore's right to decide what books to sell or not sell. But the government could enforce an anti-discrimination law against a bookstore that refused to sell books to non-Christians. Or African Americans. Or, where the law protects against sexual orientation discrimination, to a gay individual.

Similarly, the government can't force a Kosher deli to serve non-Kosher food because selling only Kosher food doesn't discriminate against any protected class. But if a Kosher deli wanted only to serve Jews, it would have a discrimination problem.

The wedding cake cases sometimes have been framed as having a free speech component -- that a bakery can't be forced to bake a cake with a message that it finds offensive. Indeed, that is one of the arguments made in the Masterpiece case. And if the cake that the gay couple wanted itself contained some content -- a pair of men as cake toppers or a written message congratulating "Charlie and David on their marriage" -- that argument might require some further consideration. But baking a cake is just baking a cake even when it is a specialized cake such as a wedding cake. And even a "message" on a cake shouldn't save it from anti-discrimination laws. For example, what if a baker refused to bake a cake for interracial couples or for interfaith couples or Jewish couples (and thus wouldn't put a cake topper that showed a man with a yarmulke). The baker might claim the figurines represented expressive content going beyond simply making a cake. But even then it is doubtful that including such figurines conveys a message of approval of such couples -- it simply conveys the fact of who is getting married.

My guess is that this case is going to end up with a plethora of opinions slicing and dicing the issues.