Last week, conservatives from across the country chimed in to urge the Supreme Court to side with Jack Phillips, the Colorado baker who refused to sell a wedding cake to a same-sex couple. While the top headline was that President Trump’s Department of Justice was siding with Phillips, amicus briefs were also submitted from 19 states, several major religious organizations, dozens of lawmakers, and a slew of conservative think takes, advocacy organizations, and legal groups.
In these nearly 50 briefs, conservatives lay out their arguments for why Phillips and other vendors like Masterpiece Cakeshop should legally be allowed to discriminate on the basis of sexual orientation, despite Colorado’s law protecting against such treatment. It’s an impressive house of cards, one that subtly attempts to delegitimize sexual identity, frame prejudice as victimhood, and re-litigate the marriage equality fight. In the end, however, the arguments fail, lest they justify legalizing all forms of discrimination so long as a religious belief is behind the refusal of service.
Same-sex weddings are somehow different
Many of the amicus briefs pontificate at length about the artistry of cake making. Several of the briefs took time to recount books about fondant icing, pastry school course catalogs, and reality shows about cake baking. By making the point that designing a cake is creative craft, they hope to show that it was, thus, an expressive act.
By agreeing to craft a cake that would be on display at a same-sex wedding, they argue, Phillips would be expressing support for such a union, which would be a violation of his religious beliefs. Forcing him to abide by Colorado’s nondiscrimination law by selling wedding cakes equally to same-sex couples would, thus, be unconstitutionally compelled speech. Indiana’s conservative Christian groups argue, for example, that the fact that “the requested cake will be a wedding cake is itself a message,” and the Cato Insitute, Reason Foundation, and Individual Rights Foundation conclude, “In sum, wedding cakes are an expressive art form that should be given full First Amendment protection.”
Most of the briefs disregard the fact that Phillips refused to sell Charlie Craig and David Mullins a wedding cake before they even discussed a design for it. Several point out that the couple later — after their experience of discrimination was already a public controversy — obtained a rainbow cake from a different artist. As the Thomas More Society, a conservative law firm, reasons, that cake “conveys a particularized message of celebration and approval of their same sex marriage.” Such a point is irrelevant, however, given there is no evidence to suggest they would have insisted upon such a design from Phillips, as opposed to “a nondescript cake that would have been suitable for consumption at any wedding,” as the Administrative Law Judge who first heard the case suggested was just as likely.
All of the points about the significance of a cake for a same-sex wedding rely on an assumption that the wedding of a same-sex couple is somehow different than the wedding of a different-sex couple. In Obergefell, the Supreme Court held, in contrast, that same-sex couples’ must be included in civil marriage “on the same terms and conditions as opposite-sex couples.” If Colorado’s nondiscrimination law included carve-outs that specifically allow same-sex weddings to be treated differently, as most of these amici argue it should, it would directly violate that decision.
Sexual orientation is not like race
One of the biggest hurdles for Phillips and his supporters is to justify anti-gay discrimination without justifying racial discrimination in turn. In particular, they must contend with a 1968 Supreme Court decision, Newman v. Piggie Park Enterprises, which rejected a barbecue entrepreneur’s claim that he shouldn’t have to serve people of color because of his religious belief that integration “contravenes the will of God.” In that 8-0 ruling, the Court declared that his attempt to justify unlawful discrimination with religious beliefs was “patently frivolous.”
Phillips’ defenders attempt to counter this with Justice Anthony Kennedy’s own words in Obergefell. Specifically, he wrote, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises,” adding that many who adhere to these doctrines “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
Though few of the briefs actually mention the Piggie Park case, they use Kennedy’s language to justify their rejection of same-sex marriage, objecting — as Justice Samuel Alito did in his dissent — to the possibility they might be painted as bigots. More importantly, they contend that there was nothing invidious or prejudiced about the way Phillips refused the couple service.
A brief submitted by “Christian business owners” (Thomas Beckwith, who challenged the Obamacare contraception mandate, and Dick and Betty Odgaard, who refused to host a same-sex wedding at their gallery) is one of the few to mention Newman v. Piggie Park directly:
In Newman, restaurant owners categorically refused to provide service to African Americans due to invidious racial discrimination, whereas the Petitioners happily serve customers of all sexual orientations but simply cannot participate in celebrations or events that run contrary to their religious convictions.
Many of the other briefs make this same point: that because Phillips was willing to sell other products to Craig and Mullins, the refusal wasn’t discrimination at all.
The Heritage Foundation’s Ryan T. Anderson, who has long carried a torch for trying to distinguish race and sexuality so as to justify anti-gay discrimination, asserts flat-out that “support for conjugal marriage is not anti-gay” whatsoever. “This Court should not allow Colorado to so demean and stigmatize conjugal marriage supporters,” he wrote, because unlike the country’s long history of racial discrimination, “There is no heterosexual-supremacist movement akin to the movement for white supremacy.” Incidentally, his brief was cosigned by several social conservative organizations that primarily serve and are run by racial minorities.
A brief signed by several major religious organizations, including the Mormon Church, National Association of Evangelicals, and Rabbinical Council of America, similarly argues that the case “does not involve any alleged right to generally refuse service to same-sex couples.” Instead, they try to suggest there is a two-way street of intolerance between same-sex couples and those who share their beliefs:
Where same-sex couples see loving commitments of mutual care and support, many religious believers see disordered conduct that violates natural law and scriptural command. And where those religious believers see obedience to a loving God who undoubtedly knows best when he lays down rules for human conduct, many supporters of gay rights see intolerance, bigotry, and hate.
The National Black Religious Broadcasters and the National Hispanic Christian Leadership Conference explicitly try to “debunk the spurious notion that understanding marriage to be a union between a man and a woman is akin to holding racist views about marriage.” Anti-miscegenation laws, they argue, were unique departures from the understanding of marriage that were “borne of animus.” Since marriage was understood as being between a man and a woman for centuries before gay people were understood and identified by modern society, there’s no way opposition to same-sex marriage can entail the same animus.
Indeed, the briefs overall argue that discrimination on the basis of sexual orientation isn’t even a pressing issue. Several imply or argue that because the couple was able to obtain a cake elsewhere, they suffered no consequences. Likewise, several briefs also claim that because support for LGBTQ equality has progressed so rapidly and LGBTQ people are now so powerful, they simply don’t need the Court’s help. The brief from the 19 states — none of which has a statewide law like Colorado’s protecting against anti-gay discrimination — ironically argues that a state could simply “create or facilitate an online listing of artists willing to design and create artistic works for same-sex weddings.” (Maine does have nondiscrimination protections, but Republican Gov. Paul LePage only signed the brief in a personal capacity.)
Because the history of persecution of people with same-sex orientations is different from the history of racial persecution, this somehow excuses the exact same kind of discrimination in the public square. It’s the kind of argument that is only compelling to those already inclined to reject the legitimacy of same-sex orientations.
The long list of false parallels
While conservatives are eager to distance Phillips’ actions from comparisons to racial discrimination, they offer up a creative list of hypothetical situations that they do think are comparable. In some cases, they hope the comparison will simply demonstrate why Phillips shouldn’t be held accountable, and in others, they warn what future kinds of enforcement could result.
Here’s a sampling of the hypothetical comparisons offered throughout the amicus briefs:
- A caterer who will not serve Jews vs. a caterer who will not cater a bris due to personal objections to circumcision
- A restaurateur who does not serve Muslims vs. a restaurateur who does not carry halal food
- An evangelical sculptor who won’t serve Catholics vs. one who won’t sculpt images of saints
- A toy collector who won’t serve Japanese patrons vs. one who won’t trade Japanese collectibles because of painful World War II memories
And here are some of the hypothetical warnings of other businesses that would be liable for violations if the Court sides against Phillips:
- An African-American baker who won’t make a cake with a Confederate flag
- An African-American supporter of “Black Lives Matter” who won’t make a cake for a white nationalist function
- An African-American restaurateur who refuses to cater a Ku Klux Klan banquet
- A Catholic bookstore that won’t carry books promoting same-sex marriage
- A Christian bookstore that doesn’t sell the Koran
- A Catholic singer who won’t perform at a marriage of two divorcees
- A Jewish florist who won’t create arrangements for a ceremony “in which a Jew was converting to another religion”
- A Jewish choreographer who won’t stage a dramatic Easter performance
- A Orthodox Jewish owner of a limousine service who refuses to provide transportation to a religious ceremony prohibited by Torah law
- A store that sells yarmulkes but doesn’t sell artifacts meaningful to other religions
- A Muslim website designer who refuses to create pornography sites
- A Muslim advertising agent who refuses to create a campaign for a liquor company
- An atheist designer who refuses to create signs proclaiming “Jesus Christ is Lord and King”
- An atheist photographer who refuses to take pictures of a Christian baptism
- A graphic designer who supports gun control who refuses to create advocacy literature for the National Rifle Association
The list goes on. The problem with all of these examples is that they are all false parallels. They inevitably refer to a vendor providing a service that they don’t already provide. In Phillips’ case, he had a product on the menu — wedding cakes — that he simply didn’t serve to all people.
Only one of the briefs actually tried to address this “menu” argument, which the Colorado Appeals Court used when it ruled against Phillips. A brief from 34 legal scholars, including the anti-LGBTQ magnate Robert George, contends:
Phillips’ position, however, is not that he will sell anything on his inventory to “straight” customers and anything except wedding cakes to LGBT customers. His position, rather, is that everything on his inventory or “menu” is available to any customer without regard to sexual orientation; but a cake designed to celebrate a same-sex wedding is simply not on his “menu”— for anyone —again regardless of their sexual orientation.
As before, this violates Obergefell by treating same-sex weddings as somehow different from other weddings.
Another prominent comparison in the briefs is abortion, with many of the amici warning that a law forcing hospitals to perform abortions could be next. This claim likewise fails on its face; the parallel would actually be if a hospital provides one group with abortions but refuses to serve another.
A brief submitted by the United States Conference of Catholic Bishops and other Catholic groups warns that if Phillips’ refusal is anti-gay discrimination, then a group like March for Life that is opposed to abortion would be considered “engaged in sex discrimination” and would be forced to “instead promote the government’s preferred message regarding the availability of government-subsidized abortion procedures whenever communicating its pro-life message.” This is quite imaginative, as nothing about Phillips’ case involves any threat to what he can personally communicate.
There is also a not-so-subtle attempt throughout the briefs to convince the Supreme Court that it already approves of anti-gay discrimination. This is done by citing two past cases: Hurley v. Irish-American Gay, Lesbian and Bisexual Group and Boy Scouts of America v. Dale. Hurley (1995) involved allowing the organizers of Boston’s St. Patrick’s Day parade to refuse to let an LGBTQ group march and Dale (2000) allowed the Boy Scouts to refuse to admit gay scouts.
Both of these cases are false parallels, as well. As the Restoring Religious Freedom Project admitted in its brief, “the Supreme Court refused to classify the private parade as a form of public accommodation” in Hurley. As a privately organized form of pure expression, it in no way compares to a public storefront that doesn’t sell all of its products to all of its customers. Likewise, the Court concluded the Scouts were a private organization that could manage its members according to its viewpoints. Neither case is actually relevant to the details of Phillips’ case.
Despite all the ink spilled in the briefs defending Phillips, his case still boils down to whether religious beliefs justify discrimination. For the Court to agree that anti-gay discrimination is justified, it will have to either upend the protections other persecuted groups depend upon or reverse its trend toward LGBTQ equality and conclude that discrimination against LGBTQ people is exceptionally tolerable.