Supreme Court Rules In Favor Of Colorado Baker

[Angrboda]

To  determine  whether  conduct  is  suffi­ciently expressive, the Court asks whether it was “intended to  be  communicative”  and,  “in  context,  would  reasonably  be  understood  by  the  viewer  to  be  communicative.” Clark  v.  Community  for  Creative  Non-Violence,  468  U. S. 288,  294  (1984).

Justice Thomas, Masterpiece Cakeshop v. Colorado Civil Rights Commission

Non-Violence, 468 U. S. 288, 294 (1984)). The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. See ante, at 5–6 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips “considers” and “sees” his work). But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation of wedding cakes’ symbolism was forthcoming “even amongst those who might be expected to be the experts”); id., at 104–105 (the cake cutting tradition might signify “the bride and groom . . . as appropriating the cake” from the bride’s parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.

Footnote to Justice Ginsberg's dissent, Masterpiece Cakeshop v. Colorado Civil Rights Commission