A Starch Reality

‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.’1 The US Supreme Court is set to decide a case that involves a bakery’s refusal to comply with an order from a same-sex couple to design a cake for their wedding reception. The case is nothing short of corrosive—having the potential to reignite a quasi-dormant culture war between the ‘faith’ and ‘equality’ communities and remove completely any potential for balanced legislative measures that account for the concerns of both sides. Before discussing the case and the concerns it envelopes, it will help to spend some time outlining the wider cultural disputes from this year between the two communities.2 We begin with the Court of Appeals in Kentucky, which, in May, issued a ruling in favour of a clothing design company (‘Hands On Original’ or ‘HOO’) that refused to design T-shirts that promoted a gay pride festival.3 The Court found that HOO was a public accommodation—defined generally as those places open to the public that cannot discriminate with respect to the product or service it provides4—and, therefore, bound by the state’s fairness ordinance to serve members of the LGBT community.5 However, the Court ruled in favour of HOO by distinguishing between refusing to promote a ‘conduct otherwise’ associated with a protected group identity (eg same-sex marriage and sexual orientation) with HOO’s refusal to promote a message (eg pride festival) that ‘could belong to any person, regardless of classification’.6 By refusing to design the T-shirts, the Court said that HOO engaged in lawful viewpoint or message censorship under the fairness ordinance.7

Constitution · Legislature · Political science · Pride · Sexual orientation · Sociology · State (computer science) · Supreme court · Gender Studies · Intellectual Property Law · Law