8 arguments against the anti-gay baker you may not have considered

What wedding cakes have to do with children, the military, and disabilities.

A 2013 photo showing wedding cakes on display in Masterpiece Cakeshop. CREDIT: AP Photo/Brennan Linsley
A 2013 photo showing wedding cakes on display in Masterpiece Cakeshop. CREDIT: AP Photo/Brennan Linsley

This week was the deadline for amicus briefs to be filed in the Masterpiece Cakeshop Supreme Court case on behalf of the same-sex couple that was refused a wedding cake by Denver baker Jack Phillips. Supporting Charlie Craig and David Mullins were more than 200 members of Congress, over 150 mayors, 19 states, more than 35 major national businesses (including Apple, Amazon, Citi, Lyft, and Levi), hundreds of celebrity chefs and restaurateurs (including José Andrés, Anthony Bourdain, Padma Lakshmi, and Carla Hall), and nearly 1,300 faith leaders, among others.

Many of the briefs reinforce arguments made by the ACLU and Colorado Civil Rights Commission that this is a straightforward discrimination case, and that no matter how artistic cakes are, they don’t justify an exemption to equal protection. Others, however, expand on the arguments by emphasizing just how many consequences there would be if the Court decides to allow Phillips’ discrimination.

ThinkProgress reviewed all 44 of the briefs and found that many people’s fates are tied to the rights of the same-sex couple in this case.

Consequences for religious liberty

Conservatives argue that Masterpiece Cakeshop is a case about the freedoms of speech and religion. Attorney General Jeff Sessions, defending Phillips’ right to discriminate, recently explained that he “has a religious view and he feels that he is not being able to freely exercise his religion by being required to participate in a ceremony in some fashion that he does not believe in. So we think that right is a fundamental right and ought to be respected as we work through this process.”

But as many of the amicus briefs argue, a ruling in favor of Phillips would decimate religious freedom. That’s because opening the door to discriminating against LGBTQ people would likewise opening the door to discriminating against religious minorities and atheists, groups already quite vulnerable to discrimination. For example, past studies found that atheists were the least trusted group in the United States — even less trusted than rapists. More recently, Muslims surpassed atheists as the least trusted minority. Both groups, and other religious minorities like them, are legally protected from discrimination on the basis of religion across the country, but if the Supreme Court sides with Phillips, it would gut those protections.

As the United Church of Christ and other groups argue, if the Colorado Anti-Discrimination Act (CADA) doesn’t protect Craig and Mullins, “religious minorities would lose much of the protection that CADA affords them.” This would severely hamper their ability to interact with society. “In the absence of such protection, religious minorities might find themselves unable to access the marketplace, which in the extreme could render religious liberty illusory as a practical matter.”

A brief from groups like Americans United for Separation of Church and State and the Anti-Defamation League points out that discrimination against someone because of their faith is often motivated by one’s own religious views. “Hence, petitioners’ arguments for a religious exemption permitting denials of service to same-sex couples could also be advanced to support denials of service to people of marginalized faiths,” they write.

Essentially, the “religious freedom” argument in favor of Phillip’s anti-gay discrimination is way off balance. As another group of faith and civil rights organizations explains, “Though a small group of religious adherents may benefit from such a regime, socially disadvantaged groups, including religious minorities—the very people who depend most on the protections of civil rights laws—will suffer the full brunt of the exemption with a loss of equal protection, equal opportunity, and personal dignity.”

“Petitioners are inviting the Court to upend our nation’s efforts to ensure that a secular public sphere is available for all religious adherents, and that religious pluralism should be fostered in civil society,” they write. “The Court should decline that invitation.”

Consequences for the military

Among the justifications for Phillips’ discrimination is the fact that other bakers were available to provide Craig and Mullins with a cake. Besides the fact that this argument disregards the harms of discrimination, it also ignores the fact that not every community has as many bakeries as the Denver metro area. As a result, allowing for this kind of discrimination will actually have a disparate impact on members of the military.

As Outserve-SLDN and other military groups note, LGBT members of the military and their families don’t have a choice as to where they are stationed, and “many military installations are located in out-of-the-way areas in which the local alternatives for acquiring essential goods and services are limited — compounding the impact if any business is permitted to decline to serve LGBT customers on the basis of the business owner’s or employee’s beliefs.” 

Moreover, “many military installations are located in areas within the United States in which local attitudes towards LGBT identities and relationships are less accepting.” As an example, the brief cites the massive Naval Air Weapons Station China Lake, based in the Mojave Desert. The cities closest to the Rhode Island-sized station are small and rural, and just 10 years ago, 75 percent of residents in those towns voted for Proposition 8, which banned same-sex marriage. “Because China Lake Navy Base is served by only two specialty cake shops, a decision by the two bakers in those shops not to serve LGBT service members or their families would leave LGBT military families without any local alternatives — converting planning for even the simplest celebrations into onerous undertakings.”

The fact that members of the military, or their family members, would be vulnerable to this kind of discrimination “would harm the long-term national security interests of the United States. Empirical data suggest morale will erode and experience shows that enlistment and retention will suffer. Such results would weaken national security, diminish military readiness, and frustrate the military’s important mission.”

And that’s only taking into consideration the anti-LGBTQ discrimination such a decision might allow for, let alone the servicemembers with other kinds of identities that would also face unavoidable discrimination in such isolated areas.

Consequences for children

One of the arguments for marriage equality that seemed to most compel Justice Anthony Kennedy was the impact that it would have on the children of same-sex couples. In 2013’s Windsor decision, he concluded that the Defense of Marriage Act “humiliates tens of thousands of children now being raised by same-sex couples,” and in Obergefell, one of his main principles was that marriage equality “safeguards children and families and thus draws meaning from related rights of child-rearing, procreation, and education.” Masterpiece Cakeshop has implications for children too.

A group of child and family law scholars explain that discrimination against adults has consequences for their kids. In fact, there is already a litany of examples of how children have suffered as a result of anti-LGBT discrimination against their parents:

In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational private school rejected enrollment for a pre-kindergartener and his 8-month-old sister after discovering that the children had two dads.

Overlapping with the military concerns, the negative impact on these children would be far more severe in small or rural communities where services are limited. “These services include access to health and dental care, childcare, educational facilities, grocery stores, and a myriad of day-to-day activities that most people ‘take for granted.’” Such discrimination could lead to severe physical and psychological consequences for those children.

Again, these arguments only speak to the children of same-sex couples, but given how a ruling for Phillips could open up other forms of discrimination, plenty of other families could be impacted, such as interfaith or interracial couples and their children.

Consequences for people with disabilities

Many different groups are concerned that a religious justification for discrimination will upend their current protections, including a massive coalition of disability rights organizations. Together with Former Congressman Tony Coelho (D-CA), author of the Americans with Disabilities Act (ADA), they warn the Supreme Court that people with disabilities are prime targets for discrimination.

“Many faiths have at least some citable, scriptural basis for shunning people with disabilities,” they note, adding, “In practice, disability discrimination is often motivated by sincere religious belief.” They cite examples of people who were denied service because they use a service dog because of the religious belief that dogs are unclean. Religious justifications have likewise been used to refuse service — including pharmacies refusing to deliver medications — to  people with HIV.

In defending Phillips, the Alliance Defending Freedom, an anti-LGBTQ hate group, argues that this is both a free speech and freedom of religion case. That free speech argument is a threat to people with disabilities as well. In one case, for example Hollister defended the wheelchair-inaccessible “surf shack” porch steps leading into their stores as part of their branding and aesthetic. Academic freedom has also been used as an argument for not providing accommodations to students with learning disabilities. If the Supreme Court concludes expression justifies discrimination, it could very easily cut off basic access to to services that people with disabilities depend upon.

Consequences for elders

Discrimination harms everyone it impacts, but the consequences are certainly greater for some, such as those who are older adults. That’s the case that Services and Advocacy for Gay, Lesbian, Bisexual, and Transgender Elders (SAGE) and the American Society on Aging make in their brief.

Discrimination compounds over time, so LGBT older adults are more likely to have poorer physical and mental health, higher rates of poverty, and fewer support structures. In particular, they’re four times less likely to have children to care for them in their old age. On top of these circumstances, there are already many accounts of LGBT elders being denied admission to nursing and retirement homes, as well as reports of discrimination and harassment within those facilities.

The brief also points out that sometimes discrimination even persists after death, being denied service by funeral homes or prevented from being buried with their spouses.

Now, as they approach the twilight of their lives, LGBT older adults dare to believe that they can live out the remainder of their days in dignity, as full and equal citizens,” the brief states. “The Court should not make LGBT older adults return to the lives they thought they had left behind — lives in which they never knew when they would be denied the equal treatment that most people take for granted, but in which they were certain that the law would not protect them.”

Consequences for businesses and communities

Though conservatives might argue that Phillips’ case is about a business’ right to run itself, a victory for Phillips would actually be very bad for businesses of all sizes — as well as the communities in which they reside.

A brief from groups like Main Street Alliance and the American Independent Business Alliance points out that allowing for discrimination “would lead to an impractical and unmanageable patchwork that would inhibit economic growth. When consumers have reason to worry that some businesses lining Main Street may refuse to serve them, the entire business community suffers.’

Speaking on behalf of countless small businesses, the brief notes that countless studies have found that discrimination is bad for business, while nondiscrimination protections are good for the bottom line. “Most consumers and tourists do not have the time or inclination to appreciate nuanced differences between individual businesses — they will simply avoid shopping in towns and communities known to have businesses that refuse service to certain groups of people,” it explains. “This result is unfair to the majority of small businesses who have no interest in claiming First Amendment exemptions to public accommodations laws, but whose businesses would suffer from others assuming that they might.”

Likewise, when people don’t want to live in a community with a lot of discrimination, it makes harder for businesses in that community to recruit talent to help run their businesses, leading to a “reduction in the number of qualified employees and a loss of productivity due to unfilled positions and redundant costs of hiring and training.”

This has consequences for the communities themselves too, as a coalition of mayors argue:

Non-discrimination protections improve the welfare of our LGBTQ residents and encourage inclusiveness and social cohesion, resulting in healthier and more stable communities. Research shows that States that have enacted laws prohibiting discrimination based on sexual orientation and gender identity have fewer disparities between LGBT and non-LGBT people across a range of economic, family, and health indicators.

Allowing for this kind of discrimination would essentially privilege private viewpoints over public access, creating communities that are less inclusive, less happy, and less healthy. The National League of Cities argues in a separate brief that nondiscrimination protections “create welcoming, diverse, vibrant, safe, and prosperous places to live and to work.” If religious beliefs can override those protections, they would no longer achieve that goal.

Big businesses are similarly concerned about the economic implications. If some businesses can discrimination, “This confusion regarding which companies can opt out of generally applicable laws will disrupt business by creating unpredictability in the marketplace.” If businesses can refuse service to customers, they can also refuse service to other businesses. At the very least, this would impose new costs on businesses as they are forced to dedicate resources to determining who will actually serve them. In every conceivable way, discrimination is simply bad for business.

Consequences for women

Though many groups stand to lose out if religiously-motivated discrimination becomes legal, women would likely be one of the most immediately vulnerable groups. That’s the case that a massive coalition of women’s groups make in their brief.

“For much of this nation’s history, women were treated as inferior citizens under law,” the belief explains. “Women’s secondary status often was rooted in genuinely held religious beliefs about sex-based hierarchy and women’s role within the family.” Those gender roles have not faded in many conservative religious traditions, and they often inform those traditions’ opposition to LGBTQ equality.

“If the Court creates an exemption from the public accommodations law to permit the Company to refuse service to a gay couple on First Amendment grounds, the implications of such a precedent for undermining the protections of these laws for women are far-reaching.”

The Tanenbaum Center for Interreligious Understanding similarly contends that religious beliefs about women could impact their employment as well. Should Phillips win, the center argues, “if a male business owner has a sincerely held religious belief that women should remain in the home and not in the workplace, the Free Exercise Clause would require laws prohibiting employment discrimination on the basis of gender to be deemed unconstitutional.”

“The implications of such a precedent,” the women’s groups argue, would be “far-reaching.”

This case has already been litigated before

One particular amicus brief makes perhaps the most compelling argument that the Masterpiece Cakeshop case poses a threat to all civil rights. Here’s how the NAACP Legal Defense & Educational Fund (LDF) describes it:

This case involves a familiar story: Three customers walk into a small business that sells specialty foods. The owner is said to be an “artist” for his unique culinary skills and believes his religious convictions imbue his work. The owner turns the customers away entirely or denies them access to the full range of his products because these religious beliefs forbid him from serving a particular group of persons. When the owner is challenged in court regarding his refusal to serve the customers, he claims that the First Amendment should abrogate public accommodations laws and immunize his refusal to provide service.

This portrays what occurred in 2012 to Mr. Mullins, Mr. Craig, and Ms. Munn in the instant case—but it also describes what transpired in 1964 to three African-American customers at a barbeque restaurant in South Carolina, which led to this Court’s seminal case addressing racial discrimination in public accommodations.

The LDF is referring to the case Newman v. Piggie Park, which it litigated. And exactly as the organization describes, an “artist” of barbecue, Maurice Bessinger, denied service to customers on account of their race and argued that he was simply following his religious beliefs. The Supreme Court outright rejected these arguments and ruled that the discrimination was not justified. It’s an informative case because 50 years have passed and it’s clear there were no consequences to ruling against the owner’s “religious freedom.”

The Court’s 1968 ruling did not induce a major backlash or give rise to some new wave of religious disputes in the courts or in public life,” the brief points out. “It did not impede religious institutions from their important and constitutionally protected activities. It did not impinge upon the commercial success or culinary artistry of barbeque specialists or other caterers.”

The LDF brief also rejects the notion that distinguishing between race and sexual orientation is justified. “At the time Piggie Park was decided, Mr. Bessinger’s religious beliefs were relatively mainstream,” it explains. “Far from viewed as fringe or disingenuous at the time, Mr. Bessinger enjoyed considerable political traction and became a statewide political figure.” A footnote adds that local news reports discussed his beliefs as legitimate and some were even “downright sympathetic.” In fact, Bessinger collected thousands of signatures to launch his own political party and later ran for governor of South Carolina.

The Civil Rights Act did not immediately remedy all racist beliefs, just as Obergefell, the Supreme Court’s marriage equality decision, did not immediately remedy all anti-gay beliefs. The Masterpiece Cakeshop case is not a new issue for the Court to consider, and it has implications for just about everybody.