Today I want to talk about the Supreme Court case “Masterpiece Cakeshop v. Colorado Civil Rights Commission"
This is a very interesting case. First of all I have been traveling in Asia for the last month and have been mostly isolated from US politics. For instance, during the most recent terrible and traumatizing US school shootings I have been in South Korea, Taiwan, and Japan - countries with some of the lowest homicide and gun related crimes in the world. There simply are no guns here. I'm not sure how many pro-gun US readers there are on dailyKOS, but without judgement I offer the observation that it feels really, really amazing to KNOW (for certain) I am completely safe, even in areas of high crime (relative to the country), that I will not be shot by a gun, any gun! A gun by a criminal (which are almost non-existent) or even a gun by a police officer (in which few if any carry in public).
A world that is substantially safer without guns aside, the "gay cake" case (as it is being called) has many "layers" to it. First of all it's important for me to mention that my mother is married to a woman. After being with her love for 10 years they decided to get married in the slim window (less then 6 months) between when the courts in California ruled in favor of gay marriage and the horrible proposition 8. For those not familiar with California politics - On May 15, 2008, the California Supreme Court ruled in a 4–3 decision ("In re Marriage Cases") that same-sex couples' access to marriage is a fundamental right.
This was closely followed by proposition 8 which was largely funded by religious organizations (with alot of the money coming from religious groups in Utah) and passed on the ballot illegalizing same-sex marriage. During a period of "grey area" that followed, the court ruled that any marriages during this period where legal and could not be overturned despite prop 8. It was not until 5 years later that this proposition was repealed and gay marriage became the law of the land in California, followed 2 years later by Obergefell v. Hodges the Supreme Court case which ruled that the fundamental right to marry is guaranteed to same-sex couples. I was the witness at my Mom's wedding back in 2008 and I have to say it was one of the most beautiful moments of my life!
Reading about this most recent case, which ironically Anthony Kennedy (the justice who authored the majority opinion in Obergfell) wrote the majority opinion for, I am struck by many emotions. First of all the religious right reaction as a "victory" shows clearly the polarization and propaganda in the US and particularly on the right. There has been various propaganda today (such as from Ted Cruz and Donald Trump's Twitter) that this is some sort of huge victory for "religious liberty". The court did narrowly side with the cake shop (in the sense of the actual ruling, not the number of justices who sided with the majority) however they rejected his first amendment rights argument and instead opted for the religious side of his argument.
But what they really were ruling on in the majority opinion was the "one or two" arguments in the original Colorado Civil Rights Commission case which they said where not "neutral" to the man's religion (there were numerous references in the majority that re-stated clear support for gay rights). What I find interesting with this opinion, and I don't totally disagree with it, is that words matter. Speaking in a way that is hurtful, damning, and drawing overly destructive metaphors (such as comparing someone to nazis) was the main issue Anthony Kennedy was arguing against. I do agree with this in the sense that our political discourse has become quite vile. However I strongly support Ruth Bader Ginsburg's dissenting opinion and believe this is the correct approach here:
“Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” Ginsburg writes.
This is the core of the matter. A man, who believes so strongly in his conviction to not sell a cake to 2 gay men that he is willing to accept a 40% loss to his business, engages in a 6 year legal battle, endures death threats and personal attacks, is someone who needs to take a step back and contemplate what the "F" he is doing. There is a part of me that wants to join the chorus of calling this man a bigot but the other part actually feels sorry for him that he has created this situation for himself and I see him as a small and petty man obsessed with a strangely obstinate inability to see another persons perspective, one who he is very clearly discriminating against. I hope one day he can see that he is not the victim.
He lives in a country where his religion is the dominant one, enshrined in everything from federal holidays to an institutional bias in favor of him and a Supreme Court case that supports his religion (I wonder how they would rule if he was another religion, perhaps Muslim?) despite NOT clearly admitting he is right (indeed the case will likely be re-litigated in Colorado according to the high courts ruling and he could very well lose again!) More disturbingly he is giving voice to a long, long, long line of other voices that will use whatever they can (and often site religion) to discriminate against many people.
Ironically the best example of his discriminatory stance is the opinion of Justice Clarence Thomas, the African American arch-conservative (who had his own pre-"me to" he-said-she-said moment with Anita Hill during his confirmation hearing). He is a very interesting person. His opinions are about as far-right as you can get on the Supreme Court (although Trump-appointed Gorsuch looks like he may try to give him a run for his money) but he does have very strong feelings (understandably) about racism, particularly cross burning and 1st amendment protected racist speech which is a very strange thing about the US and is a complicated issue.
If cross-burning is debated as free speech worthy of constitutional protection, Thomas reasons, surely refusing to bake a cake for a same-sex wedding is too. Regardless of your opinion of racist speech and the 1st amendment what he is saying here is jaw dropping. You have an African American man who is (very rightly) strongly opposed to cross burning arguing that support for this as protected speech is akin to not baking a cake for a gay couple! By the very words of probably the most conservative member of the court Jack Phillips’ (cake non-baker) discriminatory action is being defended in connection to cross burning! That is some wonderful company to keep. (sarcasm)
Basically anyone that believes "religious freedom" (the popular current conservative buzz-word which basically means you have the freedom to be prejudiced against people because, Christianity ???) is grounds for discrimination is frankly... being discriminatory. Plain and simple. It is very straightforward and there is no grey area. You are discriminating against someone based solely on their identity. What if someone didn't back a cake for you because you were a Christian? Just bake the damn cake or stop being a public business.
There are probably not many, but if there is anyone here on DKOS that is somehow enheartened by this ruling I will not disparage you, but I do think you are very misguided and urge you to consider a larger perspective, (one that looks past a thousand year old book of stories which may or may not have much factual basis) and look at people that right now, TODAY, feel threatened in their communities, cannot feel like they can date or be open about their lives in public and are plain and simple experiencing discrimination (sometimes very violent) by people that hold the exact views as this cake maker who just won a very slender victory in the Supreme Court under similar logic that supports white supremacists, neo-nazis, klan members and other protected but abhorrent forms of "speech".
Finally this viewpoint is a dying one. Surveys of youth and younger demographics in the US (and abroad) show a broad and dramatically increasing support for gay rights and equality in all it's forms. I look forward to a time when these discriminatory viewpoints are cast into the dustbin of history along with racial segregation, sex discrimination, interracial marriage etc. and many other forms of prejudice that have (and still!!!!) exist - to me they seem as archaic as thinking the world is flat (also making a disturbing comeback apparently!)
Oh America. So troubled. What a strange place. My recommendation? Please travel more and be more open-minded to other cultures, people that you perceive as "different" and other ways of living. Basically STOP being freaking prejudiced to other people!!! It's not that hard to do. This is one of the crises of our times. That and back to the first point, being NICE and being respectful, which is why I cannot outright condemn this decision (although deeply flawed) as it's the point that Anthony Kennedy was trying to make. In conclusion: Love is Love! Happy Pride Month!🌈🌈 This too shall pass