Masterpiece Cakeshop: Cake Artistry--Food or Expression?

One of the amicus briefs opposing Jack Phillips in this case, one written by First Amendment scholars I admire, candidly admits that the government may not compel persons who create speech or artistic expression,

such as painters, photographers, videographers, graphic designers, printers and singers, “to record, celebrate. or promote events they disapprove of, including same-sex weddings.”

But somehow this brief concludes that free speech protection does not extend to bakers such as Jack Phillips. Cake is food--not speech--they argue.

Surely, a pizzeria can’t claim its pizzas or breadsticks involve first amendment expression.

A McDonald’s cheeseburger is just a cheeseburger—it may not even be that.

A business that rents chairs and tables and tablecloths is not an expressive business.

So much depends on the facts.

In the oral arguments in this case, Solicitor General Francisco, argued that Jack Phillip’s custom cakes “are essentially synonymous with a traditional sculpture except for the medium used” (cake dough rather than clay or marble).

Phillips also paints using cake as his canvas.

The Solicitor General suggested that a workable test with respect to a service that is part art and part utilitarian is to ask whether it is predominantly art or predominantly utilitarian.”

So, suppose a same-sex couple asked Jack Phillips to do two things:

1. sell them some croissants to feed guests at the pre-reception lunch; and

2. to create a custom-made wedding cake to serve as the centerpiece of the iconic cake cutting ceremony celebrating their wedding and marriage.

Under the predominantly speech vs. utilitarian test, how would these two cases come out?