A day after the U.S. Supreme Court ruled in the Masterpiece Cakeshop case, a burning question remains unanswered: Are wedding cakes art?

It’s not just a frivolous point.

The U.S. solicitor general had urged the court to say yes, telling the justices that “a custom wedding cake can be sufficiently artistic to qualify as pure speech” that should be protected by the First Amendment’s free speech clause. And so did the lawyers for baker Jack Phillips, who wrote in their brief: “Phillips’s custom wedding cakes are his artistic expression because he intends to, and does in fact, communicate through them.” A brief on behalf of cake artists told the court that “the art behind a cake is simply sheer beauty,” lamenting the fact that “technology does not yet permit the filing of a brief that enables touch, taste, and smell.”

But Justice Anthony Kennedy, who wrote for the 7-2 majority and prides himself on his First Amendment views, made short shrift of the cake-as-art argument: “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.”

Instead, Kennedy cited the free exercise religion clause of the First Amendment in finding that Colorado showed impermissible hostility toward Phillips’ religious beliefs that led him to refuse to bake a wedding cake for a same-sex couple.

Why did Kennedy ignore the speech argument? And why does it matter?

“It’s right out of the Machiavellian play book,” said First Amendment scholar Ron Collins, who recently co-wrote a book about Machiavellian judging. Collins, who laid out the free speech aspects of the Masterpiece decision in a blog post Monday, said Kennedy wanted to “hold on to Obergefell,” referring to his 2015 decision embracing same-sex marriage. Avoiding the free speech argument may have been the best way to save it.

Basing his decision in favor of the baker on the free speech argument, in the view of some commentators, would have posed a threat to Obergefell v. Hodges by giving “strict scrutiny” protection to those who oppose same-sex marriages.

“Justice Kennedy rejected a sweeping understanding of the First Amendment that would create a license to discriminate,” said Elizabeth Wydra, president of the liberal Constitutional Accountability Center. “Indeed, only two justices—Justice Clarence Thomas and Neil Gorsuch—accepted Masterpiece’s free speech claim, which would have radically altered the existing understanding of the First Amendment.”

Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote a concurrence that stands as the court’s only full treatment of the artistry of cakes, and why they should be protected as free expression.

Thomas quoted a historian asserting that since the days of Victorian England, wedding cakes have been “so packed with symbolism that it is hard to know where to begin.”

As for Phillips himself, Thomas had no doubt he was an artist, whose decision not to bake a cake deserved “strict scrutiny” protection when government sanctioned him for doing so. “Phillips’ creation of custom wedding cakes is expressive,” Thomas wrote.

As a result, Thomas said, the court’s opinion in Obergefell does not “somehow diminish Phillips’ right to free speech.” Thomas added: “In future cases, the freedom of speech could be essential to preventing Obergefell from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

Collins noted that “only Justice Gorsuch was willing to sign onto the Thomas opinion.” Fellow conservatives Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. did not join the concurrence, suggesting that they, like Kennedy, did not want to go down the more complex path of free speech protection—even if that meant sidestepping the artistry of wedding cakes.