What’s in a cake? A note on Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

Twenty years ago, on early morning of 7 October 1998, a mountain bike rider cycling through the prairies surrounding Laramie, Wyoming, casually bumped into the body of a 21-year-old boy. His hands were tied to a fence with an iron thread and his face had been so badly disfigured that he resembled a scarecrow. Investigations soon unveiled that the boy, whose name was Matthew Shepard, had been beaten to death by two men because he was gay. Shepard’s brutal murder not only caused an acceleration of the development of the gay rights movement in the United States, but also vividly symbolized a conflict that existed – and exists today – in American society. In fact, “as Matt lay in the hospital just a few miles away, a float in the parade [at the Colorado State University] carried a scarecrow draped in anti-gay epithets” (B. Loffreda, Losing Matthew Shepard: Life and Politics in the Aftermath of Anti-Gay Murder, Columbia UP, 2000, 11), while at Matthew’s funeral “a very vocal group of people that condoned the brutality” held the sign “Fags Die God Laughs” (M. Cobb, God Hates Fags. The Rethorics of Religious Violence, NYU Press, 2006, 2). According to the Supreme Court, the Constitution allows gays and lesbians to take part in the public debate and seek protection from discrimination, but at the same time shields anti-gay funeral picketing as free speech [see respectively Romer v. Evans, 517 U.S. 620 (1996) and Snyder v. Phelps, 562 U.S. 443 (2011)].