I’m really not sure why I have such a strong interest in the Cake Jesus case, a/k/a Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. I’m not gay (not that there’s anything wrong with that), I’m not planning a wedding, and I’m not in the wedding-goods-and-services business, nor is any member of my immediate family, so the outcome won’t affect me personally in any direct or immediate way.
I guess the reason is twofold: One, I have this terrible prejudice, not against religion per se but against anyone who invokes his or her alleged so-called “religious” “beliefs” as justification for hatred, condemnation or mistreatment of others, let alone as part of a demand for immunity from ordinary civil (or criminal) laws. I’ve acknowledged repeatedly that I have this terrible blind spot, viz., I have no ”respect” whatsoever for anyone’s ”religious” “beliefs,” and what’s more, I don’t have to. I’m simply not interested.
It’s remarkable how often the foregoing sentiment is automatically perceived as an insult to “Christians.” I never knew that Christians were or could be defined by their predilection to demand legal immunity or assert a “right” to treat people like shit. Then again, who else but “Christians” are making these wholesale demands and asserting such “rights”? In my view, neither “Christians” nor anyone actually interested in “religious freedom” have helped themselves in this regard.
The second reason why this case, and this topic, interests me so much is because of the very real danger that Cake Jesus could win, the result of which would be (to put it mildly) a wholly-unprincipled legal disaster. As many of the briefs supporting the respondents (available here) have pointed out, there is no principled way to grant Cake Jesus an exemption from Colorado’s public-accommodations law that would not enable widespread, arbitrary and unaccountable discrimination not just against gay people and gay couples planning gay weddings, but all manner of racial, ethnic and religious minorities in all sorts of commercial contexts.
Previously I wrote that Cake Jesus’ brief utterly failed to draw any principled lines regarding his asserted exemption from anti-discrimination laws that would put him on one side and Shower Jesus, viz., a custom kitchen-and-bath installer with a sincere religious objection to n***er-bathing, on the other. Many of the briefs supporting the respondents have made similar points. Today I want to examine the amicus curiae brief of the United States — i.e., our government, my government, your government — and its attempt to distinguish Cake Jesus from Shower Jesus.
The central flaw in the United States’ argument overall is that it attempts to cabin the exemption that Cake Jesus seeks to the “creation of expression” for use, and thus the merchant’s “participation,” in an “expressive event.” Setting aside whether designing and producing dessert for a party constitutes “participation” therein or whether the party at which the dessert is served is an “expressive event” — nearly all of the briefs in support of Cake Jesus lay it on very, very thick — the brief makes no effort to define “expression,” “participation” or “expressive event” in a way that would include Cake Jesus but exclude Shower Jesus, let alone help future courts make principled distinctions. Thus, according to our government, ceramic tiling is “expression”; creating a ceramic-tiled shower stall is “participation” in the bathing that will occur therein, which is an “expressive event” about cleanliness, which is, of course, right next to godliness.
Here’s where the United States — our government, your government — jumps the rails. Failing to draw any lines between cakes and shower stalls, between baking and plumbing, between flour and tile grout, or between marriage and ablution, the United States — our government, your government — argues that while racial discrimination is unacceptable, discrimination based on sexual orientation is perfectly OK.
I wish I was kidding.
[R]acial bias is a familiar and recurring evil that poses unique historical, constitutional, and institutional concerns. As such, eradicating racial discrimination in the private sphere is the most compelling of interests. A State’s fundamental, overriding interest in eliminating private racial discrimination—conduct that violates deeply and widely accepted views of elementary justice—may justify even those applications of a public accommodations law that infringe on First Amendment freedoms.
The same cannot be said for opposition to same-sex marriage.
Br. at 32 (citations and internal quotation marks omitted). This is the United States government — my government, your government, our government — announcing to the world that while “racial bias” is a terrible, terrible thing that must be eradicated even at the expense of “First Amendment freedoms,” bias against homosexuals (disingenuously cabined here as mere “opposition to same-sex marriage”) is really no big deal.
It goes on:
The Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest. To the contrary, the Court has recognized that opposition to same-sex marriage “long has been held—and continues to be held—in good faith by reasonable and sincere people,” and that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”
Id. (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2594, 2601 (2015)). Here, the United States — my government, your government, our government — conflates two unrelated constitutional principles* in order to shame the Court into agreeing that it should validate, and that indeed it has validated, anti-LGBT bias as something that is “reasonable,” “sincere,” “decent” and “honorable”. Again, the United States — our government — disingenuously cabins anti-LGBT bias as “opposition to same-sex marriage,” without attempting to distinguish the two or explain why the latter is more acceptable than the former, let alone whether or why the latter should confer immunity from anti-discrimination laws but the former should not.
[* — The respondents’ briefs and some of their amici address the flaw in the United States’ reasoning vis-à-vis the level of scrutiny applicable to various classifications, in the context of direct governmental discrimination. Meaning, a statute or ordinance that discriminates against gay people is not held to strict scrutiny, or at least the Court has not yet held that it should be, but that has nothing whatsoever to do with the governmental interest in protecting gay people from discrimination by other private actors. The United States — your government, my government, our government — has it exactly backwards.]
When I found out that our government was taking Cake Jesus’ side in this case, I was upset, and I wrote about it then. At the time, I was expecting Cake Jesus and everyone else to rely on the “religious freedom” argument, but as it turns out, they’ve gone with “compelled speech” instead. They and their lawyers must have realized that a purely “religious” exemption from anti-discrimination laws would never fly, as it would destroy civil litigation as we know it. So they’ve gone with this convoluted argument that the government can’t “force” a deeply-religious commercial “artist” to “create” “expression” for and thereby “participate” in an event that might “express” nice, pleasant thoughts and ideas about something he “reasonably,” “sincerely,” “decently” and “honorably” hates, lest anyone attribute those nice, pleasant, non-hateful thoughts to him. Indeed, the United States does not even bother to address the Free Exercise clause in its brief. See Br. at 33 n.6.
I still don’t think Cake Jesus will win, because even the conservatives on the Court must understand what an unprincipled legal disaster it would be, and what Pandora’s box it would open. But the fact that the United States government — my government, our government, your government — has announced to the world in a brief filed with the highest court in the land its position that anti-LGBT bias is really not that important, and is indeed not only acceptable, but “reasonable,” “sincere,” “decent” and “honorable,” is disappointing at best, and chilling at worst.