Marie-Antoinette was the wife of King Louis XVI of France. She was pretty and she was feckless. She was a target for revolutionaries who despised royalty and, like her husband, she lost her head to Madame Guillotine in 1793.

After she died, her critics invented stories about her supposed callous indifference to the plight of the poor people of the kingdom. One invention was that when once there had been a bad harvest and wheat to make ordinary bread was scarce, she was informed that her subjects were starving. She is supposed to have said, ‘Qu’ils mangent de la brioche’ or ‘Let them eat cake’.

I was reminded of this heartless remark attributed to the unfortunate queen earlier this week when I read the recent US Supreme Court case about cake-a wedding cake in fact-and its maker and two disappointed men who could not have their cake and eat it.

Mr Phillips is a baker. He is an exceptionally fine baker. He owns the Masterpiece Cakeshop in Lakewood, Colorado. Two gay men asked him to bake them a wedding cake. He refused, saying using his baking skills to bake them a very fine cake went against his strong Christian beliefs.

The gay couple complained to the Colorado Civil Rights Commission (CCRC). The CCRC considered the case under the state anti-discrimination law. It decided that the bakery business had discriminated against the couple and issued orders requiring bakery staff not to discriminate against same-sex couples. The bakery appealed but Colorado courts affirmed the decision of the CCRC. The bakery then took the case to the Supreme Court under the name ‘Masterpiece Cakeshop Ltd. v Colorado Civil Rights Commission’.

There were two legal principles in the case. They collided head on. The first was the principle of non-discrimination. Colorado had a law which required shops and other service providers not to discriminate in dealing with customers. That law was generally accepted. It was a reasonable law. It would be intolerable, for instance, to allow a restaurant to turn people away because of the colour of their skin or for a barman to refuse to serve a woman simply because she was a woman.

The Colorado law was sufficiently broad to prohibit discrimination on grounds of sexual orientation so it seemed that the bakery had not got a leg to stand on. Mr Phillips would have to let the gay couple have their wedding cake and eat it.

It is here that the other important principle kicks in. Mr Phillips claimed that his rights under the First Amendment to the US Constitution had been violated.

The text of the First Amendment, sometimes referred to as the ‘Free Speech Clause’, although it covers more than that, is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

You might ask: “How does baking a wedding cake-or, more to the point, not baking one-engage the First Amendment?” The answer given by a majority of the Supreme Court, is that the First Amendment is in play when a baker is very sincere in his religious beliefs and his beliefs inform his baking skills.

Let us start with religious beliefs. Followers of a religion should be able to speak about it, whether to defend it against attack or to communicate its principles to others in the hope of gaining converts. Freedom of speech therefore includes the freedom to proselytise and discuss religious issues.

It also includes the right not to be made to participate in activities that are antithetical to sincerely held religious principles, like requiring a Christian priest to marry a divorced person if the clergyman’s personal beliefs did not allow for the recognition of second marriages.

The same would go for a priest marrying a same-sex couple in jurisdictions that permitted such unions. He could decline to act because it went dead against the principles of his Christian faith as revealed to him, even though other clergymen might be able to accommodate same-sex marriage.

However, other people are involved in the business of marriages. Apart from bakers like Mr Phillips, there are wedding-planners, wine merchants, dressmakers, restaurants, hotels and many other commercial concerns that make a living out of people tying the knot. There are even bakers who sell ready-made wedding cakes who do not wield a spatula or piping bag within ten metres of a cake, leaving the job of applying the finishing touches to subordinates.

Should the owners of such businesses be allowed to turn away potential customers because of their sexual orientation? Associate Justice Roberts put the problem this way in his opinion in the judgment.

Yet if that exception [for clergymen]were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

You can see his point. Many businesses thrive and prosper only because they can operate in an open business environment that is created by the state. They benefit from licensing and tax regimes and planning laws that enable them to operate competitively for their own benefit and for the benefit of the public and so, logically, they should not discriminate against minorities that form part of the general public.

By that reasoning bakers, who benefit from public regulation of the health standards that are imposed to allow a baker to operate commercially, should have been obliged to bake a wedding cake for his same-sex customers.

How then did Mr Phillips win his case? It seems that the majority of the court thought that the fact that he was a very sincere Christian who put his heart and soul into cake-making was the clinching argument. Associate Justice Roberts summarised his case in this way.

[Mr Phillips] argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers' rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.

The majority of the court found that CCRC had not appreciated that there was this dimension to Mr Phillips’s case. It found that it had been hostile to the idea that religious beliefs should have anything to do with doing business in the state of Colorado. It had not given due ‘respect’ to his beliefs and had not shown ‘neutrality’ when examining his defence to the discrimination complaint. If the CCRC had done this the result of the case might have been different.

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission's consideration of this case was inconsistent with the State's obligation of religious neutrality. The reason and motive for the baker's refusal were based on his sincere religious beliefs and convictions. The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

There can be no comparable case in Hong Kong. Although it has been accepted for more than a decade that the anti-discrimination provisions in the Hong Kong Bill of Rights Ordinance cover sexual orientation, that law only applies to the government and public bodies. If they do the discriminating, you have a case. If there is no public element in the case, you don’t.

It is highly unlikely that a civil servant baker will be directed to bake a wedding cake for a same sex couple and so discrimination of this kind can continue to go on in the private sector and not be examined by the courts.

However, should a law be enacted one day to deal with discrimination on grounds of sexual orientation I daresay that our courts will have to make judgments of a similar kind.

If that happens, I would hope that we have a case which will not appear to place a premium on baking skills and religious beliefs but I fear that a rich fruitcake covered with white icing will probably feature in litigation.

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About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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