The Alliance Defending Freedom (ADF), a religious right law firm that litigated the recent Masterpiece Cakeshop case, in which the Supreme Court ruled narrowly in favor of anti-gay cake baker Jack Phillips, has now revealed the next stage in their ongoing campaign to immunize conservative Christians from laws prohibiting discrimination against LGBTQ people.
It involves trolling.
ADF’s master plan arises out of an unintentionally brilliant legal tactic deployed by William Jack, a man who asked three Colorado bakers to make cakes featuring anti-gay messages, and then unsuccessfully claimed that he faced illegal discrimination after the bakers refused to do so. At least one of Jack’s proposed cakes would have featured the words “Homosexuality is a detestable sin. Leviticus 18:2,” as well as an image of two grooms holding hands with a red “X” superimposed over them.
Jack’s troll cakes would have been, at most, a forgettable prank were it not for the significance Justice Anthony Kennedy attached to them in his Masterpiece Cakeshop v. Colorado Civil Rights Commission opinion.
While the Colorado Civil Rights Commission ruled against Phillips for refusing to serve a same-sex couple in Masterpiece, it also ruled against Mr. Jack, claiming that Jack’s requested cake expressed “derogatory,” “hateful,” and “discriminatory” views. According to Kennedy, “a principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.”
All of which means that the immediate impact of this language in Masterpiece is likely to manifest itself as a brigade of trolls, seeking to purchase ridiculous and intentionally offensive products for the sake of bolstering legal claims made by religious conservatives. Are you a lawyer representing a caterer who refuses to serve same-sex couples? Why not attempt to hire another caterer to serve the buffet at your “God Hates Fags” rally, get turned down, and then claim discrimination?
Or, if you are the Alliance Defending Freedom, you just can find another anti-gay troll who has already done similar work, and try to piggyback on their effort.
ADF won the Masterpiece case on narrow grounds that avoided the core question of whether religious objectors have a right to deny service to LGBTQ customers. Meanwhile, another one of ADF’s cases, Arlene’s Flowers v. Washington, is pending before the Supreme Court. (The Court has not yet agreed to hear Arlene Flowers, and is likely to send the case back down to the lower courts as soon as Monday for reconsideration in light of the new Masterpiece decision.)
Arlene’s Flowers involves fairly similar facts to Masterpiece. Barronelle Stutzman, a florist in Washington state, refused to provide her services to a same-sex wedding. That violated Washington’s ban on sexual orientation-based discrimination, but Stutzman claims that she has a right to discriminate.
In a press release touting Stutzman’s case, ADF announced that they plan to use an anti-gay troll similar to William Jack in order to bolster their legal arguments. Per their press release:
While the attorney general failed to prosecute a business that obscenely berated and discriminated against Christian customers, he has steadfastly—and on his own initiative—pursued unprecedented measures to punish Barronelle not just in her capacity as a business owner but also in her personal capacity. In its Masterpiece Cakeshop ruling, the Supreme Court condemned that sort of one-sided, discriminatory application of the law against people of faith.
The business that supposedly “obscenely berated and discriminated against Christian customers” was a gay-owned coffee shop in Seattle. Several of his customers, who are members of an anti-abortion group, reportedly distributed anti-gay flyers depicting a disemboweled fetus below rainbow hands dripping in blood.
In a video posted by the anti-abortion group, the business owner angrily confronts his anti-gay customers and tells them to leave. An argument ensues, and quickly becomes nasty. One of the customers tells the business owner that Jesus will make him ungay. The owner claps back that he would have sex with Jesus.
It’s worth noting that ADF’s claim that Washington treated the owner of this coffee shop more favorably than Ms. Stutzman is dubious. Charlene Strong, who chairs the Washington State Human Rights Commission, told a local radio host that her commission is “going to send a letter to the gentleman who owns the coffee shop and we are going to say that you cannot deny service to someone based on their religious beliefs.”
The coffee shop owner also disavowed any desire to discriminate against Christians. “This wasn’t about Christianity. I’m not anti-Christian,” he told the same host. “I’m anti-people who print garbage and spread it around the city. If you want to hand out stuff, you put it in an adult’s hand. You don’t leave it wrapped up like a toy for a child to find. That’s what it’s all about.”
Similarly, Washington state Attorney General Bob Ferguson (D) says he also sent a letter to Stulzman “asking her to comply with Washington law, which prohibits businesses from discriminating on the basis of sexual orientation.” It was only after Stulzman refused to comply with this letter that Ferguson took action.
“Had she agreed to no longer discriminate,” Ferguson said in a statement released Tuesday, “I would not have filed a lawsuit.”
Washington State, in other words, appears to have handled both cases very similarly. In both cases, a person accused of discrimination received a letter from the state reminding them of the state’s civil rights laws. The primary difference between the two cases is that the coffee shop owner said that he does not intend to discriminate on the basis of religious faith, while Stulzman refused to comply with the law.
Nevertheless, the fact remains that the Supreme Court has effectively endorsed trolling as a litigation tactic in Masterpiece, and their decision is almost certain to inspire copycats who will follow William Jack’s example in the hopes of undermining other civil rights cases. The Court’s right flank, moreover, appears ready to pounce on states like Washington, even if those states went out of their way to treat the victims of anti-gay trolling exactly the same as people who engage in discrimination.
As Justice Elena Kagan explained in her concurring opinion in Masterpiece, Colorado did not violate anti-gay baker Jack Phillips’ rights because it required him to treat same-sex couples the same way he would treat opposite-sex couples. “The same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple,” Kagan wrote. “In refusing that request, Phillips contravened [Colorado law’s] demand that customers receive ‘the full and equal enjoyment’ of public accommodations irrespective of their sexual orientation.”
In a dueling concurring opinion, Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, called for a radical reinterpretation of what it means to discriminate on the basis of faith. Sure, Phillips would have baked the exact same cake for an opposite-sex couple, but Gorsuch believes that civil rights laws must bow to the “religious significance” Phillips’ “faith may attach to” two identical cakes.
Phillips “alone was entitled to define the nature of his religious commitments,” and “those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment.”
Gorsuch, in other words, would allow religious objectors to claim the full protection of the First Amendment whenever their actions were motivated by their religious faith, even if they were treated no differently than a secular person who behaved identically. States would be required to bring the full weight of the law down upon religiously motivated trolls like the ones who were kicked out of that Seattle coffee shop, or else they could lose the ability to enforce civil rights laws protecting LGBTQ people.
Indeed, Gorsuch’s proposed rule could render much of American law simply unworkable. Could a state enforce traffic laws against a religious driver who was speeding because he didn’t want to be late to church? Or, for that matter, would Gorsuch overrule the Supreme Court’s decision in Tony & Susan Alamo Foundation v. Secretary of Labor, which held that employers with religious objections to a federal labor law still must pay their workers the minimum wage?
As the late Justice Antonin Scalia warned in Employment Division v. Smith, “to make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs,” except when the law survives an extraordinary level of constitutional scrutiny, would permit such an individual to “become a law unto himself.” That outcome “contradicts both constitutional tradition and common sense.”
And yet, that’s exactly what Gorsuch appears ready to do. And, if Trump gets to place someone else on the Supreme Court, it is likely that Gorsuch will have the votes to do it. It will be a great day for trolls.