The Wedding Cake That Could Torpedo LGBT Equality
If the Supreme Court rules in favor of the cake-shop owner who declined to bake a wedding cake for a gay couple, the consequences could be devastating for millions of LGBT people.
I will never forget what happened at the wedding venue on the Hudson—mostly because I’m not quite sure what happened there.
As the Supreme Court heard oral arguments this week in Masterpiece Cakeshop v. Colorado—a case about a Christian baker named Jack Phillips who declined to make a wedding cake for two gay men and was then found in violation of anti-discrimination law by the Colorado Civil Rights Commission—the memory has been running through my mind with the quiet insistence of the river itself.
After being together for three years, my partner and I started looking for a wedding venue in the spring of 2016. We wanted a ceremony surrounded by nature, somewhere close to her family and easily accessible to my own. Upstate New York wasn’t our dream destination but it was the pragmatic choice.
So one weekend, we drove up to a hillside venue that had what a real estate agent might call a “commanding view” of the Hudson River.
My partner had communicated with the owners in advance of our visit, ensuring that somebody would be there to give us a tour and confirming via email—as we had grown accustomed to doing—that they had hosted a same-sex wedding before. (They had, we were told.) My partner’s family—her mother and sister—came along for the ride as well, so they could give us feedback on the location.
There was a chill in the air when we got out of the car—but our reception was colder.
The woman who gave us the tour never said anything explicitly discriminatory, she never gave us any nasty looks, but everything about her body language suggested she was deeply uncomfortable with our presence. As she showed us around, she said little, only going into detail when prompted. The space was perfect and the view of the rolling, semi-rural land below was quietly majestic—but that no longer mattered.
Even if we had loved the venue, the icy welcome had already tainted the place.
We weren’t turned down like the gay couple in the Masterpiece Cakeshop case, but we didn’t have to be in order to feel unwanted.
I don’t know if our guide was homophobic, although my mother-in-law certainly had some choice words for her when we got back in the car. The woman could have just been socially awkward or having a bad day, as my partner suggested.
Maybe she was unfamiliar with queer women and, like many Americans, felt negatively about displays of same-sex intimacy even if she wouldn’t have wanted to actively discriminate against us. I have no way of peering into her heart—and no reason to judge her.
But the fact that we even had to retroactively analyze every micro-second of that interaction speaks to the constant, low-grade burden of being publicly queer in a country where queer people are now at risk of becoming second-class citizens.
The Supreme Court’s eventual ruling in the Masterpiece Cakeshop case could determine whether or not it’s legal for business owners to expressly deny service to LGBT people on religious grounds. This has long been a goal of anti-LGBT groups and lawmakers, as evidenced by Indiana’s ill-fated 2015 “religious freedom” law and Mississippi’s more brazen entry in the same legislative genre. It is also, apparently, perfectly OK with the president of the United States.
Asked this week whether or not Trump would find it acceptable for a business to hang a sign saying “We Don’t Bake Cakes for Gay Weddings,” press secretary Sarah Huckabee Sanders said: “The president certainly supports religious liberty and that’s something he talked about during the campaign and has upheld since taking office,” adding with reference to the sign question, “I believe that would include that.”
That was astounding. Not only do the clear majority of Americans—some 61 percent, according to the Public Religion Research Institute—disagree with using religion as a cover for anti-LGBT discrimination but, in any other reality than the current scandal-a-second Trumpian political atmosphere, the White House declaring support for anti-gay signs in the windows of public-facing businesses would be A Big Deal.
Now, the federal government’s ongoing and quietly relentless campaign against LGBT equality—whether it’s rescinding guidance that protects transgender students, removing federal workplace protections, banning transgender troops from the military, leaving out LGBT people in a World AIDS Day statement, not counting LGBT people on the 2020 Census, or indeed, filing an amicus brief in support of the Christian baker in Masterpiece Cakeshop—barely seems to register as a subplot.
But for me—and the estimated 10 million Americans who are LGBT—it is the plot.
The Masterpiece Cakeshop case could decide whether we live in a country where we have to check storefronts for anti-gay signage before walking in—or whether we simply continue living in a country where couples like mine have to navigate uncertain and sometimes homophobic environments to participate in public life.
The oral arguments, which happened Tuesday, were not exactly heartening.
The Washington Post and The New York Times both described the Court as “divided” in the case. Other outlets were even less optimistic. Rolling Stone said that SCOTUS “seems headed toward a terrible decision” for the LGBT community.
Slate LGBT writer Mark Joseph Stern speculated on Twitter, that, based on the justices’ comments, the baker would probably score a 5-4 win and the popular SCOTUSblog said that the court was “leaning toward” a ruling for Phillips—although it should be emphasized that, at this point, we are all reading tea leaves.
Justice Anthony Kennedy, a Reagan-era appointment, is seemingly a swing vote once again—and his performance this time around gave LGBT people cause for concern.
Most notably, he suggested that a Colorado Civil Rights Commission member could have been interpreted as displaying a “hostility to religion” when she said, with regards to the Phillips case, that “it is one of the most despicable pieces of rhetoric that people can… use their religion to hurt others” (PDF).
“Counselor, tolerance is essential in a free society,” Justice Kennedy told the Colorado solicitor general, who argued for the state. “And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
It was that exchange that led Sarah Posner to declare, writing for The Nation, that Kennedy—despite referring to a hypothetical “no gay weddings” sign as “an affront to the gay community”—had lent a surprisingly “sympathetic ear” to the anti-LGBT arguments in the case, and that this sympathy “could potentially tip the case” in favor of Phillips.
It was especially surprising, as Posner noted, because of Kennedy’s history of issuing pro-LGBT opinions, most recently the nationwide legalization of same-sex marriage in Obergefell v. Hodges.
But Kennedy’s stance—or at least, the outlines of it that SCOTUS-watchers have been able to discern—is not unique. A small but vocal minority of Americans who support same-sex marriage, would, in fact, allow for religious refusals—as me and other LGBT people have been noticing in horror this week.
The most prominent example was New York Times columnist David Brooks who, under the headline “How Not to Advance Gay Marriage,” chided LGBT advocates this week for seeking a legal resolution to the case, writing, “First, it’s just a cake. It’s not like [the two men] were being denied a home or a job, or a wedding.”
He went on to blame our “polarized, angry and bitter society” for turning “every disagreement” into a “lawsuit.”
“Readers of this column know that I fervently support gay marriage,” Brooks concluded, before adding the inevitable exception, “but I don’t think bakers like Jack Phillips are best brought along by the iron fist of the state.”
Brooks painted a picture in which the gay couple should have been “neighborly,” as he put it, but cruelly opted to sue a small business owner instead.
But for those of us in the LGBT community, religious-based service refusals—and the defenses thereof that have been getting ample column inches this week—send a patronizing (and not very neighborly) message: Marriage should be good enough for you and you shouldn’t bully business owners by pursuing full equality under the law.
I can’t speak for all 10 million of us in this country, but I think it’s safe to say that none of us asked for a world in which the wedding cake question had to be resolved by the Supreme Court. We do, as Brooks noted, have bigger fish to fry.
A less-than-positive greeting from a venue guide is far from the worst thing to happen to me because I’m queer. Compared to some of the other forms of discrimination that LGBT people face—especially if, unlike me, they’re not white—this was a remarkably minor inconvenience.
If we had been overtly turned away, the “iron fist of the state” would be the last thing I would want to reach for. I wouldn’t have even bothered filing a complaint while finding someone else to take my business.
So yes, I am willing to admit that there is a difference between denying someone a cake and denying them a job—but legally speaking, I still fail to see significant daylight between denying someone either if your reason is related to the sexual orientation or gender identity of the prospective cake-eater or employee.
I’d rather see LGBT people win nationwide employment protections before we get universal wedding cake rights, but this is the fight that got to the Supreme Court first.
For a case to advance all the way to that high level, it has to have wide-reaching ramifications.
This is no mere civil suit between neighbors anymore—this is the nationwide judicial aftershock of the 2015 same-sex marriage decision that has somehow taken the bizarre but deeply symbolic form of cake.
It is the nagging and persistent question that anti-LGBT groups and LGBT advocacy groups have been sparring over until it came to a head at a particularly inopportune moment. And the decision will affect not just one baker and two gay men, but millions of people.
It’s easy to see how SCOTUS allowing business owners to deny services for same-sex weddings—yes, even when that service is “just cake”—could significantly narrow options for LGBT people living in deeply religious parts of this country or, in the worst-case scenario, open up room for discriminatory signs like the one that Sarah Huckabee Sanders “believe[s]” the president would accept.
A decision in favor of Masterpiece—depending on its exact shape—could create a world of hurt for LGBT people at a time when we are already hurting.
I know from my Facebook feed that I wasn’t the only LGBT person who had trouble getting through this week, as we watched the arguments trickle out from behind closed doors, with the bad takes—like Brooks’ op-ed—following close behind. I watched the despondent posts from my friends as the blogosphere began circulating some of the justices’ discouraging remarks.
But I think what pricked me most was the implication from the baker’s defense team that—in part because Phillips “offered the couple anything in his store” like “additional cakes, custom cakes, that would express other messages”—his denial of service could not be compared to denying service to an interracial couple.
“[W]e know that objection would be based to who the person is, rather than what the message is,” said Alliance Defending Freedom attorney Kristen Waggoner in response to questions from Justice Elena Kagan, the implication being that Phillips’ objection wasn’t the fact that his clients were gay, but the fact that they were getting married. He would sell them any other kind of cake, but not a wedding cake.
That argument, as Posner noted for The Nation, seemed to catch on with Kennedy who told the ACLU attorney at one point, “Your identity thing is just too facile,” noting that Phillips could easily make the point that, “It’s not their identity—it’s what they’re doing.”
But when you’re queer, how can you possibly separate the two?
To me, wedding my partner isn’t just something that I “do,” it is part of the package of who I am.
Every straight person who has the word “husband” or “wife” in their Twitter bio apparently perceives marriage as a core part of their personhood, so how can you possibly reduce same-sex marriage to some sort of extracurricular activity that business owners should be allowed to sit out?
When I was standing in Upstate New York, looking at the Hudson River, wondering why our guide wasn’t at least saying something polite and banal like, “It’s a lovely view, isn’t it?” the distinction between my queer “identity” and the “event” we were planning was not a meaningful one. All I knew was that I needed to look elsewhere.
I will never forget that day—not because it was a horrific experience, but because I could soon live in a country where the highest judicial body tries to impose an artificial distinction between who I am and with whom I wish to celebrate my love.
Those two things, for me, are tied together.
They are married, you might say.