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Wedding Cakes and Discrimination: An Analysis

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For some reason, cakes became a major flashpoint in anti-discrimination law a few years ago. In the Masterpiece Cakeshop case in the US Supreme Court and the Asher’s Bakery case in the UK Supreme Court, courts were confronted with similar, albeit not identical dilemmas. In the Masterpiece Cakeshop case, two same-sex customers went into a bakery looking to purchase a wedding cake to celebrate their marriage. In the Asher’s Bakery case, a homosexual rights ‘activist’ looked to purchase a bespoke cake bearing the slogan ‘Support same-sex marriage’. In both cases, the bakers refused to supply the cake due to their Christian beliefs. In both cases, the respective Supreme Courts held that this refusal was legally permissible though for different reasons. The US decision was a narrow one that overturned a decision by a state tribunal on the grounds that it displayed religious hostility to the owner of the Masterpiece Cakeshop. The UK decision was a broader one, focusing on the freedom of conscience and expression of the baker. How should we think about these cases? The philosopher John Corvino has written an interesting analysis of the arguments in the Masterpiece Cakeshop case. Looking closely at two of the concurring judgments in the case, one from Justice Kagan and one from Justice Gorsuch, he suggests that there were legitimate grounds for thinking that the refusal of service by the owner of the Masterpiece Cakeshop was discriminatory. Corvino argues that there is an important distinction to be drawn between the use and design of a cake (or, indeed, any object) when it comes to the application of anti-discrimination law: it’s okay to refuse to sell a particular design of cake but not okay to refuse to sell a particular cake based on its possible use. It seems that the UK Supreme Court, agreed with this perspective when reaching their decision. In what follows, I want to explain Corvino’s reasoning. In doing so, I’m focusing on the general philosophical issues. . .

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News source: Philosophical Disquisitions

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