Remember the Christian baker whose refusal to create a custom cake for a gay wedding was upheld last June by the Supreme Court? Jack Phillips and his Masterpiece Cakeshop are back in the news, this time over his refusal to bake a cake celebrating a transgender woman’s transition. Acting on Autumn Scardina’s complaint, the Colorado Civil Right Commission (CCRC) in July found probable cause that Phillips violated the Colorado Anti-Discrimination Act. The baker sued the agency, which recently responded with a motion to dismiss the case.
Phillips first came to public attention in 2012 after Charlie Craig and Dave Mullins visited Masterpiece Cakeshop in Lakewood, Colorado, to order a cake for their upcoming wedding. When Phillips refused them on religious grounds, the couple filed a complaint with the CCRC alleging that Masterpiece had violated the state’s antidiscrimination law. In reply, Phillips asserted his rights to free speech as an artist and to free exercise of his religion under the First Amendment.
To create a customized wedding cake, Phillips argued, “for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” The CCRC rejected Phillips’s claims, and at a 2014 hearing one commissioner remarked, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”
The Colorado Court of Appeals later sided with the CCRC, maintaining that Phillips’s rights were not violated since a reasonable observer would not view his cake as endorsing same-sex marriage but only as complying with the law. But in a 7-2 decision handed down June 4, 2018, the U.S. Supreme Court in Masterpiece Cakeshop, Ltd., et al. v. Colorado Civil Rights Commission et al. set aside the CCRC decision. In so doing, the justices did not address the baker’s free-speech claim but ruled that Colorado officials had compromised the neutrality toward religious viewpoints required when administering generally applicable laws.
The Wedding Cake as Speech
Despite the legal wrangling, the ultimate issue turns on a simpler but larger question: Is a cake just a cake? Semiotics, the study of how people use “signs” to communicate, suggests an answer. All groups of people, the LGBTQ and evangelical Christian communities included, use signs to communicate shared meanings — a phenomenon that I study as a scholar of evangelical culture. For a gay couple or a transgender woman, a celebration cake is a sign that connotes liberation from bigotry. But for a baker who shares Phillips’s views of Christianity, a cake is a sign that connotes God’s created order of male and female and the authority of the Bible.
From the standpoint of semiotics, the issues raised by the Masterpiece case can be read this way: A gay couple desired to “speak” through a sign, a wedding cake, that communicated their emancipation. For its part, Colorado protected the couple’s dignity through a state law that bars discrimination on the basis of sexual orientation by businesses open to the public. On the other hand, Masterpiece Cakeshop asserted a constitutionally protected right to refrain from “speaking,” through the artistic expression of its cakes, messages with which it disagrees.
In his majority opinion for the Supreme Court, Justice Anthony Kennedy acknowledged, “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 protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.”
By this observation, Justice Kennedy conceded the (though he did not use the word) semiotic principle that a cake may not, in fact, be just a cake, but a sign that communicates meaning and thus constitutes speech. This finding has profound ramifications for American civic discourse, for it locates speech not only in the denotative (or dictionary-definition) meanings of words and objects, but in the connotative meanings implicated by their broader historical and cultural associations.
The Wedding Cake as Sign
Semiotics tells us that the most commonly used signs are words. Thus, the word dog may conjure up for one person a mental image of a furry friend and for another a fearsome beast. Yet by using the sign dog, the two people can share meaning, if imperfectly, as they communicate about dogs.
A sign can also be an object, such as a wedding cake. But the meaning of a sign can evolve over time. Thus, as Justice Thomas wrote in a concurring opinion, the custom of serving cake to wedding guests began in Victorian England and came to America after the Civil War. Today, however, “If an average person walked into a room and saw a white, multi-tiered cake, he [sic] would immediately know that he had stumbled upon a wedding.”
Indeed, Thomas noted, “Although the cake is eventually eaten, that is not its primary purpose.” It does not even matter if the cake is edible. Instead, “The cake’s purpose is to mark the beginning of a new marriage and to celebrate the couple.” In fact, the cake stands at the center of a whole series of wedding rituals — the consultation with the baker, the cutting of the cake, the photographs — that together signify the cake’s celebratory meaning.
All parties in the Masterpiece case agreed on the denotative meaning that “wedding cake” has assumed in today’s culture: namely, a cake specially created to celebrate a wedding. The rub is the connotative meaning of “wedding cake.” The change in American public opinion on the subject of gay marriage has been astonishingly swift. Less than a decade ago, the “one man, one woman” definition of marriage prevailed both in law and public opinion. Then, what had once been settled became unsettled (or resettled). New possibilities for the significance of wedding cakes forced traditionalists to defend assumptions they previously took for granted as natural and uncontested.
The Wedding Cake as Myth
This evolution of signs is at the heart of the Masterpiece case. Wedding cakes illustrate, in the vocabulary of semiotics, how a sign can lose its original meaning and be elevated to a “myth.” Thus, cake was originally served to Victorian-era wedding guests in a gesture of hospitality, until that original meaning was lost and cakes at weddings became “wedding cakes.” Today, when the average cost of a wedding is $33,391, the cake has further become an integral element of the “dream wedding” myth. And now, as illustrated by these high-profile cases over celebratory cakes, marriage equality opens new possibilities for the wedding cake to assume new meanings even further from its original significance.
For Craig and Mullins, as well as for Phillips, the wedding cake has long since lost its original meaning as only a hospitable food offering. Instead, to Craig and Mullins the wedding cake now connotes not only a wedding celebration but a myth of liberation, equality, and freedom from antigay bigotry and discrimination. For Phillips, the wedding cake continues to connote a myth, rooted in the traditional definition of marriage, of God’s sacred created order of male and female and the authority of his Word.
Thus, through the lens of semiotics, a cake is not just a cake. This explains why Phillips did not accept Colorado officials’ claim that, were he to make a cake for a gay wedding, it would only signify his compliance with the law. Such an argument de-mythologizes the wedding cake, something that Phillips, according to the shared meanings of his evangelical community, could not do.
As the new case involving Phillips illustrates, the myth of the celebration cake and what it signifies continues to evolve. In her complaint, Autumn Scardina alleged that on or about June 26, 2017, Masterpiece Cakeshop “refused to prepare my order for a cake with pink interior and blue exterior, which I disclosed was intended for the celebration of my transition from male to female,” on the grounds, she was told, that “to prepare such a cake would be against their religious beliefs.” As he did in the previous case, Phillips asserts a sincerely held religious belief, this time “that each person’s sex — whether male or female — is given by God and cannot be chosen or changed.”
Is an eventual resolution in view, one that would neutrally balance, as Justice Kennedy wrote, “the authority of a State and its governmental entities to protect the rights and dignity of gay persons” with “the right of all persons to exercise fundamental freedoms under the First Amendment”?
An analogy may be taken from a 2013 speech given at the University of Chicago Law School by Supreme Court Justice Ruth Bader Ginsburg. She surprised her audience by criticizing the court’s 1973 Roe v. Wade decision that established a constitutional right to an abortion. The ruling was too sweeping, Ginsburg believed, and “stopped the momentum on the side of change” by short-circuiting the state-by-state democratic process. Rather than working out a gradual consensus, Americans have been polarized ever since as Roe became a powerful sign in a battle between “choice” and “life.”
A similar outcome is in prospect over the Supreme Court’s 2015 Obergefell decision for marriage equality. Whatever its merits, the decision short-circuited a democratic consensus that might over time have worked out an accommodation between the competing claims of each side. Instead, from a semiotic standpoint we are left with one sign — a cake — but two irreconcilable meanings for two communities seemingly engaged in a zero-sum game that precludes the possibility of dialogue and consensus.