As the Supreme Court hears oral arguments Tuesday in Masterpiece Cakeshop v. Colorado Civil Rights Commission, there will be a lot of discussion about the First Amendment rights of the baker Jack Phillips, the artistry and expression of cake-baking, and “religious freedom.” At its core, however, this is a case in which conservatives are still arguing that homosexuality is unnatural and that gay and bi people are not worthy of protection under the law.
Alliance Defending Freedom (ADF), the anti-LGBTQ hate group defending Phillips for having refused to sell a wedding cake to a same-sex couple, argues insistently that his concern was not the couple’s identity, but the nature of the event. As ADF states in its reply brief, the last document filed before oral arguments, “Phillips serves LGBT individuals; he simply declines to create art that celebrates same-sex marriage.” They contend that “a wedding cake at a same-sex marriage celebrates that union as a marriage, which is a message that Phillips cannot in good conscience convey.”
“Phillips is concerned not about the sexual orientation of his customers but the ideas that his wedding cakes convey,” ADF explains. He has beliefs about “the nature and definition of marriage,” but he does not bear “hostility toward LGBT individuals.”
The courts have not been compelled by this argument that a same-sex couple’s wedding is somehow separate and removed from their identity. When ruling against Phillips in 2015. the Colorado Court of Appeals directly stated, “Discrimination on the basis of one’s opposition to same-sex marriage is discrimination on the basis of sexual orientation.” On common comparison, in this and similar cases, is that a “tax on wearing yarmulkes is a tax on Jews.” But ADF persists in drawing a distinction, because what they’re actually arguing is that sexual orientation isn’t an identity that warrants legal protection. In other words, even if discrimination based on marriage is discrimination based on sexual orientation, it shouldn’t matter because the law shouldn’t protect sexual orientation, even though Colorado’s law does.
This is apparent from ADF’s numerous lawsuits trying to overturn sexual orientation nondiscrimination protections across the country (including Colorado’s via a separate case). The reply brief also contains this conspicuous passage that attempts to distinguish Phillips’ actions from racial discrimination:
Neither does constitutional protection apply when expressive professionals exclude people solely because of who they are. Thus, a number of Respondents’ other hypotheticals — cake artists who object to “celebrating a black person,” and photographers who will not “photograph Mexican families” because of “personal animus” — are beyond what free speech would protect.
“Because of who they are” is the key phrase there. ADF acknowledges that refusing service based on race is an action based on who the person is, but they then argue that the same standard should not apply when it comes to serving people based on their sexual orientation. The dogwhistle is not that difficult to hear.
ADF is essentially arguing here that anti-gay discrimination is narrower and thus more tolerable than racial discrimination, a common thread found in the amicus briefs submitted by other groups in support of Phillips. President Trump’s Department of Justice likewise argued that racial discrimination is worth protecting against under the law, but sexual orientation discrimination isn’t.
Anti-gay conservatives have long contended that there is no such thing as a sexual orientation “identity.” Focus on the Family, for example, refers to “labels or behaviors” that are applied to “sexual sin.” The Family Research Council believes that “homosexual conduct” is harmful and that “there is no convincing evidence that a homosexual identity is ever something genetic or inborn.” The Mormon Church “distinguishes between same-sex attraction and homosexual behavior” and, like the Catholic Church, teaches that having same-sex attractions is not a sin but acting on them is.
This line of reasoning has long been used to justify ex-gay therapy as well as the newer incarnations of reparative therapy that focus on achieving lives of chastity. Conservatives hope to convince people who are gay or bi that their capacity for loving the same sex is an affliction, rather than a core part of who they are (as research has consistently demonstrated for the better half of a century), and thus these “unwanted same-sex attractions” should be condemned and ignored. These opponents of the “gay lifestyle” have then translated that same belief into legal arguments, rejecting attempts to recognize discrete legal protections based on sexual orientation, whether it be for marriage, military service, or basic protections in employment, housing, and public accommodations like bakeries.
The Federalist, an outlet that wears anti-LGBTQ bigotry on its sleeve, on Monday directly connected the dots between Masterpiece Cakeshop and this archaic skepticism about the nature of sexual identity. The comparison between anti-gay and anti-black discrimination, Nicole Russell explained, “rests upon the idea that people’s sexual behavior is inborn, something they can’t change like the color of a person’s skin.” She substantiated this skepticism by linking to a widely debunked report that claims sexuality is not innate.
“People of faith like Phillips argue they shouldn’t be forced to endorse and participate in actions and ideas,” she wrote, “while the gay lobby thinks they are justified in forcing people to endorse what they consider aspects of personhood.” Russell apparently does not consider being gay or bi to be an “aspect of personhood.”
And nor, it seems, does ADF. Though the organization may pontificate at length about objections to the “message” of a same-sex marriage, their underlying objection is to the premise that same-sex sexual orientations are legitimate. ADF argues that a “same-sex wedding” is somehow different from the kinds of weddings for which Phillips already made cakes — and that that’s why the law should accommodate his discrimination — but such a notion depends entirely on the belief that wanting to marry someone of the same sex is an aberration.
In its last words to the Court before oral arguments, ADF describes Phillips as “a man who serves all people but declines some messages.” The undisputed facts of the case are that he wouldn’t sell the same wedding cakes to a same-sex couple that he would sell to different-sex couples — regardless of the design, which the couple never even had the chance to discuss with him before he refused them service. It’s the couple — not their message — that ADF and Phillips are rejecting.