In a new interview with the Christian Broadcasting Network, Attorney General Sessions takes the position that the anti-gay baker whose case is headed to the Supreme Court has the right to discriminate against gay and bi people because of his religious beliefs.
In his remarks, Sessions admitted he shares the opinion that a baker who prepares a wedding cake somehow “participates” in the wedding ceremony, arguing that Jack Phillips of Masterpiece Cakeshop has the “fundamental right” not to participate in something he doesn’t believe in.
Well what I would say to you now, while the matter is in litigation, but I would just say to you that too often we have ignored what the Constitution actually says. It says Congress shall make no law respecting the establishment of a religion nor prohibiting the free exercise thereof. So the question is, the cake baker has more than just a personal view here. 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.
In a segment cut from the full interview as aired, Sessions also said that he believes the Religious Freedom Restoration Act (RFRA) protects Phillips, because it states that the government cannot impose a person’s religious belief “without a compelling reason to do so.” In other words, he believes there’s no compelling reason to protect a same-sex couple like David Mullins and Charlie Craig from discrimination because of their sexual orientation.
Of course in the 1990’s we passed a Religious Freedom Restoration Act that said the government should not constrict a person’s religious belief without a compelling reason to do so. So we think that statute has been ignored too often and not respected sufficiently. And so when you consider those two things, then you’re getting not only greater protection for people’s religious beliefs, that I think should be given.
On a similar note, when asked about the Department of Justice’s new “religious freedom” guidance, Sessions rejected the claim that it constitutes a license to discriminate. Referring back to the bakery case, he added, “Someone can make a cake, it’s not only one person in the world can make a cake.”
Under Sessions’ leadership, the Department of Justice filed a brief taking Phillips’ side, but that brief actually made a different argument than the comments Sessions made in this interview. Indeed, the DOJ took no position on whether religious beliefs protect a right to discriminate, instead arguing the case on narrower free speech grounds by defining a wedding cake as expression. But the baker, represented by the anti-LGBTQ hate group Alliance Defending Freedom, certainly does make the religious argument.
By claiming there’s no “compelling interest” to protect against anti-gay discrimination, Sessions is actually sounding a dog whistle that sexual orientation is less deserving of protection than other categories like race. That’s because the Supreme Court has long concluded that protecting against discrimination is, in fact, a compelling interest. Even in his decision concluding that RFRA protects Hobby Lobby from having to provide contraception coverage to its female employees, even the very conservative Supreme Court Justice Samuel Alito wrote that religion should not justify discrimination — at least when it comes to race:
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.
Given Sessions’ long history of opposing civil rights on the basis of race, he might disagree with even that conclusion, though it’s not likely he’d ever say so out loud. And given Alito’s consistent rulings against marriage equality, it seems likely he’ll be willing to circumvent his own reasoning to rule in Phillips’ favor. But siding with Phillips — as Sessions does and Alito probably will — requires believing that discrimination against someone because of their sexual orientation is more tolerable under law than discrimination against someone because of their race. In short, it’s inherently anti-gay.
In Phillips’ case, as well as a handful of other cases involving anti-gay wedding vendors, state courts have consistently upheld LGBTQ nondiscrimination laws, asserting that the government does, in fact, have a compelling interest to protect queer people from discrimination.