Jack Phillips, the Baker at the center of Masterpiece Cakeshop Ltd. vs. Colorado Civil Rights Commission. Also known as the Gay-Wedding Cake Case.

Masterpiece Cakeshop Ltd. vs Colorado Civil Rights Commission is a supreme court case centered around a bakery, and a wedding. The Christian owner of the bakery told a same-sex couple seeking a wedding cake that he does not create wedding cakes for same-sex marriages due to his sincerely held personal religious beliefs, but that he would happily sell them any other baked goods they wanted. The conversation never made it to questions about design of the cake, or nature of services.

This has been of particular interest to me, as my fiance and I recently selected a baker to supply our own wedding cake. The case serves to test religious freedom to discriminate against legal prohibitions on certain forms of discrimination. A frequent criticism arguing in favor of Masterpiece Cakeshop is the question:

Should bakers be required to make Nazi wedding cakes?

The answer is, legally, no. But in my opinion, bakers should be legally required to sell wedding cakes to Nazis, and that’s a critical distinction.

But before we get into why this distinction matters, we must first make some important considerations on the definition and morality of discrimination.

Prior to the fall of Jim Crow, the word discrimination meant simply the recognition and understanding of differences between one thing and another, and the different treatment of those two different things. The remnants of this etymology can still be seen when we apply the word “discriminating” to non-people: A discriminating wine enthusiast might enjoy one wine, while refusing to taste another. Not all forms of discrimination are therefore immoral, and only certain kinds are illegal.

The Civil Right’s Act of 1964 banned discrimination on the basis of race, color, religion, sex and national origin. In 2015, this same act was ruled to apply to sexual orientation and sexual identity, including gender identity. In 2008, another non-discrimination act banned discrimination on the basis of genetic information. These laws do not make all discrimination illegal: they bar only specific types of it. And a reasonable interpretation of the 10th Amendment of the Constitution could argue that if a form of discrimination is not explicitly made illegal, then that form of discrimination is legal.

So, when we examine discrimination, we must consider what type of discrimination we are looking at. I suggest that there are three main categories of discrimination: The Good, the Bad, and the Weird.

Good Discrimination should also be Legal discrimination. If you are hiring a new head of surgery for your hospital, it is both legal and wise to select a surgeon with a wide breadth of experience who graduated high in her class from a good medical school and gave a fantastic interview, and to prefer her over another candidate who barely graduated from a school you’ve never heard of and has no surgical expertise. Especially if the latter’s interview went poorly. The skill, background, and personality of these candidates are entirely valid and legal ways to discriminate between these candidates, whereas their genders are specifically barred from consideration under law.

Bad Discrimination includes all illegal discrimination. Choosing to remove candidates from consideration because they are of a certain race, gender, sexual identity, religion or national origin is explicitly illegal. Genetics are also illegal factors to consider, under the Genetic Nondiscrimination Act of 2008. However there are also certain unprotected identifiers that may also belong in this category: Weight, height, attractiveness or political ideology.

Then there’s the Weird Discrimination: Bizarre discriminatory policies which we may not understand, but are useful to consider for testing whether or not a given form of discrimination is legal or illegal. Suppose I own a restaurant and hang a sign saying “No Yellow Shirts: Anyone wearing a yellow shirt will not be served.” Perhaps this is an anti-gang violence initiative. Or perhaps I suffer from Xanthophobia: An irrational fear of the color yellow.

At the end of the day, the justification for discrimination doesn’t matter: But I am not legally barred from discriminating on this basis, so it’s not Illegal. And depending on the justification and impact, discrimination based on the color of a patron’s shirt might be a morally good or neutral idea.

So If I were a baker, which definition of discrimination would it be for me to refuse to bake a Wedding Cake at the request of gay people or Nazis?

That depends on the reason for the rejection.

If I refuse to make wedding cakes for certain people, then that is a form of discrimination: I am treating certain people differently than other people. The nature of what separates those two types of people may be protected (making my discrimination illegal), or it might be unprotected (making my discrimination legal, but not necessarily good).

If I refuse to sell wedding cakes to couples because the groom will be wearing a Navy Suit, that’s weird discrimination. But it’s not necessarily illegal discrimination. In contrast: if I refuse to sell wedding cakes to couples because the groom is Black, or because the Bride is Jewish, or because both participants are men, that’s illegal discrimination. And honestly, I cannot think of an instance of discrimination that is both legal and “good” without being weird in supplying cakes to weddings.

But: If I do not make wedding cakes for anyone, then my refusal to supply a wedding cake to anyone is not discrimination at all: Everyone gets treated equally by me. There simply is no wedding cake, therefore there is no discrimination.

In fact, this is the reason the Colorado Civil Rights Commission ordered Masterpiece Cakeshop to stop selling wedding cakes: By getting the shop out of a business they wanted to discriminate within, the discrimination ended. For now, anyone is treated equally by Masterpiece Cakeshop: They can buy Mothers’ Day cakes and Birthday Cakes, cupcakes, doughnuts and anything else the store sells, but the bakery simply does not do wedding cakes.

The loophole Masterpiece Cakeshop wishes to exploit here is in making a distinction between a same-sex wedding cake, and an opposite-sex wedding cake as separate products. The argument the Cakeshop must make to prove their practice is not discrimination is that the Cakeshop simply does not offer same-sex wedding cakes, which are somehow distinct from opposite-sex wedding cakes.

Is this a same-sex or opposite-sex wedding cake?

The flaw in this argument is that there is no difference between the tongues, stomachs, and eyes of heterosexual humans and homosexual humans, so there needn’t be differences in the taste, nutritional content, or appearance of their cakes: Not to mention that the design of the cakes was never discussed with the clients, so the Cakeshop can’t begin to make such an argument.

So, how does this apply to Nazi Wedding Cakes?

Suppose a bride and groom to be walk into my bakeshop asking for a cake. I sit down and ask them to tell me what sort of cake they’d like.

“We want a 3 layered cake, White frosting outside… as white as can be, just like our ancestry. White cake, with chocolate ganache frosting between layers, and strawberry filling for flavor. and we want a Swastika pattern on each surface, to celebrate our Nazi heritage.”

Political heritage is not currently a legally protected identity. So I can probably tell them “I will not supply a wedding cake to Nazis.” although probably legal, this would be an unwise move: I am not making money off a cake I won’t be selling, and morally this form of discrimination is, at best, questionable.

But I can, both legally, and morally, tell the couple “We can do a White Cake, here is a sample of our frosting for you to see if it’s what you’re looking for. We do Chocolate Ganache with strawberries, but the raspberries might be better that time of year. All of those are options I offer all my customers. But we cannot do a Swastika Pattern: That is not a service I have ever offered any customer, and I will not be able or willing to start drawing Swastikas on my work. You are welcome to select any of these other patterns I offer, or I can do a plain cake and let you have it before the wedding so you can have another artist make any modifications after my work is complete.”

In the same vein, Masterpiece Cakeshop could have said “We can do a cake fitting all of these parameters, however you should be aware that I have always sold cake toppers as a bride and groom and cannot supply a pair of grooms and cannot supply toppers in any other format.” If true, the store could also have added that “Every wedding cake we have ever done has a bride and groom topper, and I refuse to supply a cake without a bride and groom topper.”

This would not be discrimination: The Cakeshop would be supplying the same goods and services to clients regardless of protected identities, though it might persuade some clients they’d prefer not to serve to seek cake elsewhere. The only thing stopping this sort of a legal argument from being valid in Masterpiece Cakeshop v. Colorado is the important fact that the owner, Jack Phillips, ended the meeting before even considering cake design. There was no consideration of the job, no preponderence of equal treatment: There was simply a flat out refusal of service on the basis of a protected class.

The appropriate legal remedy is therefore to require Jack Phillips to either supply Wedding Cakes and Wedding Services to all people regardless of protected identities, or to bar Jack Phillips and Masterpiece Cakeshop from supplying goods and services which he is unable to end illegal discriminatory practices.

All eyes rest on Anthony Kennedy in this case, which could create a new era of discrimination, or end it. Here’s hoping he chooses the latter!