This Landmark Gay Rights Case Could Turn on Whether Hair and Makeup Is an Art

Updated 04/18/19

Here's a philosophical question for you: What is art? Is it any and all forms of creative expression, or is it regulated to specific categories like painting, drawing, sculpture, literature, and dance? Who gets to decide—the viewers of the art or the makers of the art? How would we even go about finding a consensus? Not to go all university philosophy professor on you, but it's a deceptively complex question that clearly only leads to more questions. Since it has real-world effects, it's worth pondering.

 

The Supreme Court justices think so because currently there's a landmark gay rights case taking place, and it might hinge on that very question—specifically in regards to hair and makeup. Are hair and makeup styling considered to be art? Or is it something else altogether? In the words of Justice Elena Kagan, "How do you draw a line?" Keep reading to learn more about this landmark gay rights case and how this question beauty became involved. 

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The case is known as the Masterpiece Cakeshop Case. It all started when Charlie Craig and David Mullins, a gay couple, placed an order for a wedding cake at a custom shop in Colorado. The owner of the shop, Jack Phillips, refused to make them a cake based on the grounds of religious objection. Craig and Mullins filed a complaint based on a state law that bans sexual orientation discrimination. Phillips then went to the Supreme Court, saying that by forcing him to make a cake for a gay couple, the state would be denying his right to free speech and exercise of religion.

 

He argued that making a cake is creative, so it is a form of art. By this logic, then, if the state forced him to make a cake for Craig and Mullins, it would be forcibly compelling him to a certain form of expression, thus violating his free speech.

This is where hair and makeup come in. If baking a cake is art, then aren't makeup application and hairstyling art as well? In that case, anyone who claims to be creative in their line of work could refuse services to, and thus discriminate against, a gay person. 

In a transcript of the court proceedings, Justice Ginsburg asked "Who else then? Who else as an artist? Say the—the person who does floral arranging, owns a floral shop." Then, Justice Kagan posed a few questions of her own, asking if the hairstylist at a wedding was also creating art and expression. Phillips's lawyer responded, "Absolutely not. There's no expression or protected speech in that kind of context." Justice Kagan responded "Why is there no speech in—in creating a wonderful hairdo?" To which Phillips's lawyer said, "Well, it may be artistic, it may be creative, but what the Court asks when there's—." Here is where Kagan cut her off, offering a simple line of logic.

"It's called an artist. It's the makeup artist."

"But you have a view that a cake can be speech because it involves great skill and artistry. And I guess I'm wondering, if that's the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist?"

It's definitely an interesting (and incredibly crucial) case. It's not only unique in circumstance, but it's also unique in that, up until now, we can't recall a time when Supreme Court Justices discussed hair and makeup of any kind. It just goes to show beauty has far-reaching real-world effects.

As Justice Kagan said, "I'm quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they're doing something that's of—of great aesthetic importance to the—to the wedding and to—and that there's a lot of skill and artistic vision that goes into making a—somebody look beautiful. And why—why wouldn't that person or the hairstylist—why wouldn't that also count?" 

As for the final ruling, we'll have to wait. Though we're hoping acceptance and equality will prevail. 

For the rest of the official case transcriptions, head to www.supremecourt.gov. Next, read 6 trans models who are changing the beauty space.

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