By Lorna Bracewell
On Tuesday, December 5, 2017, the U.S. Supreme Court heard oral arguments in a case that court-watchers are calling the biggest case of the term, Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission. The facts of the case are not in dispute. In 2012, David Mullins, Charlie Craig, and Deborah Munn, Craig’s mother, went to Masterpiece Cakeshop, a Denver-area bakery, to order a specialty wedding cake. After a brief conversation, the bakery’s owner, Jack Phillips, refused to make a cake for the same-sex couple on the grounds that he is a Christian and believes same-sex marriage is sinful.
Humiliated by Phillips’s refusal – in an interview with NPR, Craig’s mother recalls her son breaking down in tears once they returned to the car – Mullins and Craig decided to file a complaint against Masterpiece Cakeshop with Colorado’s state commission on civil rights. Colorado is one of only 21 states with a law prohibiting discrimination in public accommodations on the basis of sexual orientation and one of only 19 states with a law prohibiting such discrimination on the basis of gender identity. The only federal legislation affording LGBT people any form of anti-discrimination protection is the Matthew Shepherd and James Byrd, Jr. Hate Crimes Prevention Act, which makes hate crimes based on sexual orientation or gender identity federal crimes.
After an investigation and hearings, Colorado’s civil rights commission found that, by refusing to sell Mullins and Craig a wedding cake, Phillips had violated their civil rights. Phillips appealed the decision, arguing that Colorado’s Anti-Discrimination Act infringed on his freedom of speech and free exercise of religion. The state appeals court rejected Phillips’s First Amendment claims. When the Colorado State Supreme Court declined to review Phillips’s case, he petitioned the U.S. Supreme Court.
Not surprisingly for a case that bundles together a long-standing culture-war issue (same-sex marriage) with matters that are proving equally incendiary in the Trump-era like free-speech and religious liberty, commentators have weighed in on this case from a variety of perspectives. While much of this analysis is thoughtful and illuminating, one particular response to Masterpiece Cakeshop evinces a serious lack of understanding of the issues at stake.
Let’s call this response, which has appeared everywhere in the last week from The New York Times to The National Review to New York Magazine, the “It’s just a cake” response. It goes something like this: As of June 2015, when the Supreme Court ruled in Obergefell v. Hodges, same-sex marriage is a matter of settled constitutional law. Furthermore, there is no disputing the fact that discrimination on the basis of sexual orientation has no place in a just society. That said, filing a civil rights complaint against a pious small business-owner who politely refuses to serve you is unseemly. After all, “it’s just a cake.” Why gum up the wheels of justice to obtain a judicial remedy for what is, ultimately, a personal slight? Better to resolve such conflicts privately. After all, LGBT folks have won the culture wars. Wielding the cudgel of the law to bring stragglers into line is unsportsmanlike.
One particularly prominent example of the “It’s just a cake” response can be found in conservative pundit David Brooks’s most recent column, “How Not to Advance Gay Marriage.” A strong advocate of ordered liberty and the rule of law in other contexts, Brooks laments that the plaintiffs in Masterpiece Cakeshop responded to the discrimination they endured by adopting “the legal course.” He even goes so far as to characterize Colorado’s enforcement of its anti-discrimination law as a violent abuse of state power, likening it to “the barrel of a gun.”
As an alternative to the coercive “legal approach,” Brooks proposes that LGBT people who experience discrimination should respond with “neighborliness.” “The neighborly approach,” Brooks explains, would be to say to the person who has discriminated against you, “Fine, we won’t compel you to do something you believe violates your sacred principles. But we would like to hire you to bake other cakes for us. We would like to invite you into our home for dinner and bake with you, so you can see our marital love, and so we can understand your values.” No need, in Brooks’ view, to wield “the iron fist” of “state power.” After all, he writes, “it’s just a cake”; no one was “denied a home or a job.” Moreover, Brooks adds, “the tide of opinion is quickly swinging in favor of gay marriage. Its advocates have every cause to feel confident, patient and secure.”
This “It’s just a cake” response to the Masterpiece Cakeshop case reflects a fundamental misunderstanding of the social, legal, and political conditions confronting LGBT people, even in a post-Obergefell America. While Brooks is right that the plaintiffs in Masterpiece Cakeshop were denied a cake and not “a home or a job,” many LGBT people in the United States do face discrimination in housing and employment. In fact, housing and employment discrimination against LGBT people is legal in a majority of U.S. states and municipalities. (The Movement Advancement Project provides maps tracking anti-discrimination legislation throughout the country.)
For example, only 20 states have laws prohibiting housing discrimination and employment discrimination on the basis of sexual orientation and gender identity. Meanwhile, 3 states (Arkansas, North Carolina, and Tennessee) have laws prohibiting the enactment of such anti-discrimination laws by local governments. Also, as previously stated, there are presently no federal laws shielding LGBT people from discrimination in housing, employment, or public accommodations. This means that roughly half of LGBT people in the U.S. live in states that do not afford them legal protections against discrimination.
One consequence of the widespread legal permissibility of discrimination against LGBT people is that LGBT people are vastly overrepresented among the homeless population in the U.S. According to a 2012 study by the Williams Institute at UCLA Law, 40% of homeless youth identify as LGBT while LGBT youth make up only about 7 percent of the population.
While it is difficult to predict the long-range consequences of any legal ruling, experts have expressed concern that a ruling in favor of Masterpiece Cakeshop will leave LGBT people bereft of even the meager anti-discrimination protections they currently possess. This concern was memorably expressed during Tuesday’s oral arguments by Justice Stephen Breyer when he asked the lawyer representing Masterpiece Cakeshop to specify how the Court might define “expressive speech” entitled to First Amendment protection broadly enough to encompass cake decorating but narrow enough not to “undermine every civil rights law since year 2.” The “It’s just a cake” response obscures the current state of anti-discrimination law in the U.S. and the vulnerability of the LGBT community to unfair treatment.
The “It’s just a cake” response is also misguided in another respect. According to FBI statistics, LGBT people are the most likely targets of bias-motivated violence in the U.S. today. In 2016, anti-LGBT hate crimes comprised nearly one fifth of the 6,121 bias-motivated crimes reported to the FBI. While data on bias-motivated violence against transgender people is harder to come by, there is reason to believe that transgender people, particularly transgender women of color, are even more vulnerable to this sort of bias-motivated violence.
Perversely, violence against LGBT people in the U.S. has been increasing right alongside public support for and acceptance of gay rights. As LGBT people gain visibility and legitimacy, those who find LGBT people immoral or offensive become more willing to combat these shifting cultural tides with violence.
This grim reality makes Brooks’s observation that since “the tide of opinion is quickly swinging in favor of gay marriage,” LGBT people “have every cause to feel confident, patient and secure” enough to respond to discriminatory treatment with “neighborliness” seem especially misinformed. A neighborly overture to someone who has discriminated against you on account of your sexual orientation or gender identity might be worse than ineffective; it could be downright dangerous.
Interestingly, Brooks’s faith in the power of neighborliness to transform people’s opinions about same-sex marriage may be rooted in a widely-publicized 2014 study that found that a single conversation with an openly gay canvasser could shift a person’s attitude on same-sex marriage. Of course, this infamous study was discredited when it was revealed that the lead researcher had fabricated the data upon which it was based. A subsequent study replicating (or, rather, actually employing) the methods that the fraudulent study had only pretended to use found that a short conversation with door-to-door canvassers was able to significantly change people’s opinions about transgender people. However, the authors of this study have stressed that it is only a single data point and that their findings should not be over-interpreted. In other words, the latest credible political science research offers no conclusive proof that the “neighborly” approach to attitudinal transformation is as effective as the “It’s just a cake” response makes it out to be.
Rather than armchair quarter-backing LGBT rights advocacy, it would behoove those who would argue “it’s just cake” like Brooks to become better informed about the many challenges confronting LGBT people today. If they took the time to do this, I think they would be less inclined to place the onus for “neighborliness” on LGBT people, and more inclined to place it on those who would deny their LGBT neighbors equal treatment under the law.
Lorna Bracewell is assistant professor of political science at the University of Nebraska at Kearney. Her scholarship focuses on the politics of gender and sexuality.