This post contains spoilers for Season 9, Episode 14 of Will & Grace.
Will & Grace has always been known for its social commentary, especially on gay rights, and the new season — back after 11 years — is unapologetically political. The latest episode, however, attempts to respond to high-profile cases of bakeries refusing to serve same-sex couples but gets the facts all wrong. Indeed, the episode ends up reinforcing the talking points used by opponents of LGBTQ equality instead.
In the episode,”The Beefcake & the Cake Beef,” Karen enters a bakery and, after ignoring the line of customers, attempts to order a cake that says “MAGA” (“Make America Great Again”) that she can take to a birthday party for President Trump. The baker (played by Saturday Night Live‘s Vanessa Bayer) refuses. “I won’t make a cake for that… person,” the overly polite baker says, confirming she objects to what the cake says.
When Grace learns from her assistant, Tony, that a bakery is refusing to serve Karen “because it went against their beliefs,” she is incensed. “It’s just like that thing in Colorado with the baker who wouldn’t make the gay wedding cake,” she says, referring to the real-life Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the outcome of which is still pending.
When Tony explains it was a MAGA cake, Grace changes her tune, prompting Tony to prod her furhter.
“It’s cool for a bakery to refuse to make a MAGA cake, but not a gay cake?” Tony asks. Grace insists they’re totally different, but admits she doesn’t know why. “How can you complain about your free speech if you’re not going to defend someone else’s?” he persists. “If Mrs. Walker can get turned away, anyone can get turned away.”
Grace eventually heads to the bakery to defend Karen. “Even people with hateful beliefs have rights,” Grace tells the baker. “Refusing her is the same as refusing marginalized people like an interracial couple or a gay couple.”
A Latina woman, a man with a disability, and a transgender man all proceed to confront Grace for defending Trump, but she stands by her position. When the baker still refuses, Grace threatens, “You know that I can call the ACLU on you, right? I mean, they’ll represent anyone — Westboro Baptist, Illinois Nazis,” Karen interjects, “Fine people on both sides!”
The threat successfully intimidates the baker into complying.
A few more comedic antics ensue, including a cake that says “IMAGAY,” but the episode ends with the baker still making cakes she objects to, including one with a swastika for a Richard Spencer-stand in (who is also attending Karen’s party for Trump).
The real life version of this debate, however, is much more nuanced and complex. In Masterpiece Cakeshop, Colorado baker Jack Phillips (owner of Masterpiece Cakeshop) argues that he should have the right to refuse to sell a wedding cake to a same-sex couple in violation of state nondiscrimination laws. The Court heard oral arguments in the case back in December, and it seems that — like Grace — Justice Anthony Kennedy, the likely swing vote, is sympathetic to anti-gay bigots and might even see them as the victims.
The facts of this real-life case actually explain why the fictional Will & Grace baker is not an appropriate parallel to Masterpiece Cakeshop.
In 2014, Marjorie Silva, owner of Azucar Bakery in Denver, was asked to make cakes with messages like “Homosexuality is a detestable sin” or an image of two grooms holding hands with a red X over them. When she refused, the customer — who attempted this at several other local bakeries — filed a complaint arguing that she discriminated against him on the basis of his religious identity. The Commission ruled in Silva’s favor, concluding that her decision was based not on the customer’s creed, but on the cake’s “derogatory language and imagery.”
The standard, then, is not whether a bakery would make any cake for any customer. What matters is whether a bakery will make the same cake for different customers. Silva, who enjoys freedom of speech protections, doesn’t sell cakes with discriminatory language to anyone. The customer might have had a case if Silva was willing to sell an anti-gay cake to a Jewish person but just not to him as a Christian person. But she refuses to make such cakes for any customer. Anti-gay cakes are not on the menu.
Phillips’ refusal is different. In Masterpiece Cakeshop, wedding cakes were on the menu when Charlie Craig and David Mullins entered the store looking to buy one for their commitment ceremony. Phillips refused to sell them a cake before any discussion on the artistry of the cake could be discussed. The Commission’s investigation found that Phillips would object to selling a same-sex couple the very same wedding cake designs he’d previously sold to different-sex couples. It ruled against him, because Colorado law does not allow customers to be treated differently because of their sexual orientation.
Those who support Phillips and believe he should be allowed to discriminate make the exact same arguments as the Will & Grace episode. They cite the Commission’s ruling for Silva and ruling against Phillips as proof that there’s a double standard against conservatives. They likewise argue that if he’s forced to sell wedding cakes to same-sex couples, then Black bakers will have to sell KKK cakes or Jewish bakers will have to make swastika cakes — just like in the episode. As the ACLU has argued on behalf of Craig and Mullins, this conflates the “who” and the “what.”
Ria Tabacco Mar, staff attorney with the ACLU LGBT & HIV Project, told ThinkProgress, “Will & Grace got the humor right but the law wrong. Colorado’s Anti-Discrimination Act isn’t the All-Cakes Act, and neither are similar laws in other states. Businesses are free to decide what products to sell to all their customers, so no store has to offer anyone a cake that says ‘MAGA’ if it doesn’t want to.” In other words, Grace’s threat to call in the ACLU was hollow.
“Once a business chooses to offer a particular good for sale, however, it can’t refuse to sell that product to a customer because she is Black, or gay, or Christian,” Mar added. “That’s discrimination. And that’s exactly what happened to ACLU clients Dave Mullins and Charlie Craig, who were refused a wedding cake — a cake the bakery would have sold to anyone else — simply because they are gay.”
One other important flaw in the episode is the fact that nondiscrimination laws do not protect people on the basis of their political beliefs. Even in Washington, D.C., where the nondiscrimination law prohibits discrimination on the basis of “political affiliation,” this still only refers to participation in a specific political party (e.g. Republicans, Democrats, etc.), not personal ideology. The irony of the Will & Grace framing is that all of the individuals who admonish Grace for defending Karen reference identities that are protected under New York City nondiscrimination law (race, ethnicity, nation of origin, disability, and gender identity). Karen, as a Trump supporter, is not.
It’s unclear exactly what message Will & Grace was trying to convey with the episode, but it failed to properly frame the current civil rights struggle faced by the LGBTQ community. Indeed, by suggesting that bakers should be bullied into violating their own freedom of speech, it may have done more harm than good.