Changing the Way We Discuss Sexuality

Morgan Doherty

There is a harsh and potentially harmful false equivalency that plagues the legal discourse around the pending Supreme Court case Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission; “you wouldn’t ask a Jewish baker to bake a Nazi cake, so a religious man should not be forced to bake a cake for a gay couple.” Out of context this argument might seem like either an obvious point or the plot to an offensive comedy sketch. But, in the discussion of Masterpiece, or as you may know it, ‘the gay wedding cake case,’ it can be found everywhere from casual conversation to the editorial section of The Chicago Tribune. The Tribune is not the only prominent voice to have made this argument; editorials in The Denver Post have done the same. 2016 Presidential Candidate Gary Johnson even went so far as to respond to the misguided analogy with the argument that Jewish bakers should in fact be forced to bake Nazi cakes. And now that oral arguments have been given in front of the high court, the discourse is making a resurgence from its heyday in 2012 on blogs and legal sites.

The facts of Masterpiece have been plastered across various news outlets for nearly six years, but here is a quick refresher: in July of 2012 Charlie Craig and David Mullins of Colorado attempted to purchase a customized cake from Masterpiece Cakeshop in Lakewood, Colorado. Jack Phillips, the owner of the shop, denied them this service on the basis of his religious beliefs. Phillips, a Christian, holds the beliefs that his cake decoration is a form of art through which he can honor God, and it would be displeasing to God to create a cake specifically for the purpose of a same-sex marriage. Craig and Mullins subsequently filed charges of discrimination with the Colorado Civil Rights division under the Colorado Anti-Discrimination Act (CADA), after which a formal complaint was filed with the Colorado Office of Administrative courts on the grounds that Masterpiece failed to provide them with a “public accomodation,” which ruled in favor of Craig and Mullins. On appeal, the decision was affirmed by the Colorado Court of Appeals. The Supreme Court heard oral arguments in this case on December 5th, and a decision is expected to be handed down in either May or June of this year answering the constitutional question: does the application of the public accommodation law compel speech in a way that violates the Free Speech or Free Exercise clauses of the First Amendment?

There are multiple valid arguments on both sides of the case, no matter how you analyze it. From a constitutional law perspective, there are arguments to be made for both Phillips and for Craig and Mullins. Based on Title II of the Civil Rights Act of 1964, public accommodation laws are constitutional and dictate that equal access and services must be provided to all, regardless of their background or identity. The opposing argument is that Phillips was not violating the public accommodation clause of the Civil Rights Act because he offered to sell the couple a cake without a message on it, just not a cake that explicitly “promoted same-sex marriage.” He also offered to sell them any of the pre-made items in the shop. Afterall, defenders say, Phillips has stated that he welcomes LGBTQ+ customers, he just does not believe in using his gift from God to endorse something he views as immoral.

As someone who supports the expansion of LGBTQ+ rights, I can acknowledge both my desired outcome in the Court’s ruling and the validity of the legal arguments in favor of Phillips. However, my issue with the case has, as of late, largely been with the problematic discourse surrounding the issue. In particular, the aforementioned analogy of the Jewish baker and the Nazi case. To begin with this is not a particularly legally sound argument, as Nazis are — for good reason — not a protected class in the United States, while LGBTQ+ Americans make up a portion of US citizens labeled as “protected.” In addition, this argument does not pay proper deference to the experiences of Jewish Americans, not just in the context of the mid-20th century. It also does not respect the everyday experiences of prejudice and discrimination that they experience, particularly with the surge in neo-Nazism on the far-right of American politics.

There is, in addition, a larger problem with this argument: the implication that being gay, like being a Nazi, is not only a choice but a political ideology like being a Republican or a socialist. This is a problematic implication for a multitude of reasons and it is not limited to the Masterpiece case. In only one of many examples, Sam Clovis, Senior White House Correspondent to the Department of Agriculture, has previously stated that “as far as we know, homosexuality is a choice.” In addition to this point being scientifically incorrect, if being gay were like belonging to a political party then legal losses like this one would be disappointing, not livelihood threatening.

In 2015, when Obergefell v Hodges was adjudicated, multitudes of Americans assumed that life had immeasurably improved for gay citizens, that their greatest hill had been conquered. However, in 29 of 50 states you can be married to your same sex partner on a Saturday and legally terminated from your job for your sexuality on a Monday. Furthermore, if the Supreme Court hands down a decision in favor of Masterpiece Cakeshop, the repercussions would extend far beyond wedding cakes. In addition to stores and shops refusing service, landlords could refuse residency, doctors and medical clinics could refuse care and adoption agencies could refuse potential parents children, all on the basis of something that is not, and never has been, a choice. Not only does the “Nazi cake” argument not pay deference to Jewish citizens, it doesn’t respectfully pay deference to the severity of this case for LGBTQ+ citizens.

The United States is a country of more than 330 million people, a population that encompass unique backgrounds, characteristics, beliefs and identities. A deliberative democracy, we are not. In fact at the moment, we can’t seem to pass a budget or an agenda as a representative democracy. However, disagreement and a difference in beliefs or lifestyles does not need to constitute a lack of respect. The equation of LGBTQ+ citizens to Nazis conveys a lack of respect for people who identify under that umbrella term, as well as for the serious implications that this case has for the lives of these citizens. Civilized, respectful, and diversified discourse can take place around this topic. This argument is none of those things.