Cases brought before the Supreme Court are not innocent things. They are highly engineered, shaped so that the actors are seen as sympathetic victims.
For example, Oliver Brown, the father of Linda Brown, was chosen from among the 13 parents suing Kansas schools to serve as the lead plaintiff in Brown v. the Board of Education because he was the only man among the group and a pastor–in other words, a plaintiff white people would see as respectable. And it’s not like little Linda Brown was unexpectedly rejected from a white school. Instead, black families who were NAACP members or friends of the legal team agreed to try to register their 20 black children in all-white schools. When their registration paperwork was rejected, they then had evidence of discrimination that they could bring to court. In other words, Civil Rights activists and lawyers had to create a set of facts in their favor to win it.
That’s just what anti-gay activists did in Masterpiece Cakes, the recent Supreme Court decision about whether personal religious beliefs are an excuse not to bake a custom-made cake for a same-sex couple’s wedding. SCOTUS, as I argued earlier this week, made a weak decision, choosing to avoid the central questions of the case (whether baking a cake is an act of artistic expression, whether sincerely held beliefs can trump anti-discrimination laws) by instead saying that the Colorado Civil Rights Commission was not religiously neutral toward Jack Phillips, the baker. It therefore reversed the Commission’s decision without saying anything substantive about either free speech or the freedom of religion. SCOTUS seems to be saying, “If you are angry about the outcome, blame it on the Colorado Civil Rights Commission.”
It’s not about cake, and it’s not about religious freedom. It’s about establishing power.
But should we?
Justices Ginsburg and Sotomayor don’t think so. In their dissent (with which I agree), they argue that, in fact, the Commission treated Phillips fairly.
Here’s a review:
In 2012, Colorado did not legally recognize same-sex marriage. That year, Colorado residents Charlie Craig and David Mullins got married in Massachusetts, then returned to Colorado (which would legally recognize same-sex marriage in 2014, a year before the Supreme Court recognized it across all the states). They wanted to celebrate with a cake and contacted Phillips of Masterpiece Cakeshop to make a custom cake. He declined their business, saying that his religion prevented him from giving his approval of same-sex marriages. He would, however, sell them an off-the-shelf cake as doing so would not require him to use his own artistic expression. But, like many newlyweds, Craig and Mullins wanted something more special. They found it at another bakery (not always an option for those living in rural areas) and complained to the Colorado Civil Rights Commission because Phillips refused to serve them based on their sexual orientation–a category (along with religion, race, and gender) protected by state law.
The Commission agreed with the newlyweds: Phillips didn’t have the right to refuse service to someone based on their sexuality. The Commission provided explicit instructions for ensuring that Masterpiece Cakeshop would no longer discriminate, including requiring staff training on the law. Instead of complying, the bakery chose not to sell wedding cakes to anyone (a decision I think is the right one because it means taking responsibility for one’s bigoted choices) and appealed to the Colorado Court of Appeals. In its appeal, it got help from one of the nastiest, most powerful Christian legal aid groups: the Alliance Defending Freedom (ADF).
The ADF fosters a sense of Christian victimization through its lawsuits. It has won tax-payer funds for student religious groups through its Center for Academic Freedom (first led by David French). It runs a summer internship for conservative law students. It organizes Pulpit Freedom Sunday, a day in which pastors are encouraged to make political endorsements from the pulpit, in defiance of the IRS. It ran the Christmas Project, which defended the public celebration of Christmas, such as placing nativity scenes in public spaces. It brought us the Day of Truth, when conservative Christian students are encouraged to speak up in school about the sin of homosexuality. (Yes, they organized it to occur after the Day of Silence, in which LGBTQ+ kids and allies used silence to call attention to the bullying of queer kids. Because they are cruel like that. The event has since changed hands.) It was a key player in the terrible Hobby Lobby decision (which Mennonites should particularly care about because the second plaintiff was a Mennonite-owned cabinetry company out of Pennsylvania). Its work inspired God’s Not Dead. In short, it’s terrible. So, of course, the ADF swooped in to help invoke “religious freedom” as a reason to be able to defy anti-discrimination laws.
The Court of Appeals agreed with the Commission.
Here is where it gets scary, I think:
Prior to Phillips’ case, the Colorado Civil Rights Commission had to deal with complaints brought by a man named Bill Jack. Jack is part of a team that runs Worldview Academy, which, this summer and fall, will run NINE camps across the US that prep middle and high school students in a “Biblical worldview.” To date, according to the Worldview Academy website, they have held 303 camps and taught more than 35,000 students. He also led a Creationist Youth project called the Caleb Campaign that seems to be defunct. In a radio interview last year about schools that are respectful of trans students’ identities, he said, about such schools that we need to “burn ’em down.” That is what parents of the past would have done, he said: “They would burn them down,” he told the host. “They would tear the bricks out of the walls, they would use the bricks to stone the apostates.” Despite his vile words, places like Grove City College in western PA continue to welcome Worldview Academy’s summer programs.
In 2014, Jack located several queer-friendly bakeries in Colorado and approached them with a request for a custom-made cake. He wanted one that showed an open Bible with the words “God Hates Homosexuality” written on it, along with Bible verses referencing same-sex sexual contact as a sin. He also asked for an image of two men holding hands with the universal no sign (a circle with a slash through it) over them. The bakers consistently refused, saying that while they would bake cakes for religious customers and religious occasions, they would not decorate a cake with words that were offensive, hateful, or derogatory. They made it clear that Jack’ request was not being denied because he was a Christian but because he was asking them to say hateful things. He returned to one bakery three times in a single day to press the issue. Then, seeing that his request would not be filled (which was his goal all along), he filed a complaint of religious discrimination with the Colorado Civil Rights Commission.
The Commission correctly denied his complaint. He was not denied service, they argued, because he was a Christian. The Appeals Court agreed with the Commission’s decision that the bakery did not discriminate based on creed but “declined to make [Jack’s] cakes. as he envisioned them, because he requested the cakes include derogatory language and imagery.”
Above, Bill Jack displays what passes for logic in so much of the “Christian Worldview” industry. In this video, he argues that a hardware store owner should be able to not sell tools to someone building an animal torture chamber, just as a baker should not be required to sell a wedding cake to two gay men. If you are struggling to understand why this comparison fails, remember that torturing animals is illegal and that being married to a person of the same sex is not. Also, the purpose of an animal torture chamber is to torture animals, whereas the purpose of a cake is to eat it, which does not hurt people or animals. (At some point, we gotta talk about conservative Christians’ obsession with bestiality and animal abuse.)
Jack was never serious about wanting to do business with these bakeries. He chose them because they had made statements affirming gay people, and he wanted to use them as the bad guy in a fight about religious liberty–liberty he wasn’t earnestly trying to exercise. He didn’t really want a cake–because, if he did, he probably wouldn’t have chosen Le Sensual Bakery, which has a speciality in creating erotic cakes, as one of the places where he tried to do business.
As stupid as Jack’ case was, it became VERY important in Masterpiece Cakes. Justice Kennedy, writing for the majority, argued that Phillips was entitled to a “neutral and respectful consideration” from the Colorado Civil Rights Commission but that the Commission failed to do this, instead showing “clear and impermissible hostility” toward his religious beliefs. We know this, they argued, because the Commission responded differently to Phillips’ case than it did to Jack’s. In the three complaints that Jack filed against bakers who refused to write derogatory things about gay people, the Commission “treated the… bakers’ conscience-based objections as legitimate, but raised [Jack’s] as illegitimate,” thus putting themselves in the position of judging what is and is not a belief worth protecting.
But Jack was never interested in having his right to a homophobic cake protected. He was interested in generating a legal complaint, not in eating a cake. Besides this, as Justice Ginsburg carefully lays out, the cases are fundamentally different. In the Jack’s complaints, he was denied service because he asked for a cake that the bakers did not make; his religion had nothing to do with that. The bakers would have made him any cake that they make other people, and they would have denied anyone, regardless of that person’s religion, a cake that they did not make. In the case of Phillips, he refused to sell a cake he regularly makes because of the sexual orientation of the would-be clients. Craig and Mullins, who were seeking a wedding cake, were treated worse than other customers for wanting what other customers get. Jack was treated “no better, no worse” than customers of other religions. The Commission’s treatment of Jack SHOULD contrast with its treatment of Phillips because the cases are wildly different.
Frustratingly, Jack’s shenanigans became key to the logic in the Court’s ruling earlier this month. But that kind of behavior demeans the court. Though we have more Americans than ever, we still only have 9 Supreme Court Justices, and they hear fewer cases than they did in the past. The Court gets about 7000 requests to hear cases each year and selects just 100-150. Because clerks recommend which cases are heard and because they want to make choices that affirm their own wisdom, they tend to choose conservatively. Because Masterpiece Cakes got heard, another, more important case, didn’t. And it got heard, in part, because of Jack.
Above, our Justices, some of whom can’t smell a scam.
But this is what we need to be prepared for. Conservative Christians have increasingly let go of the mandate to win souls to Jesus or encourage personal piety. Instead, they want to win the “culture,” which is to say, they aim for control, not conversion. Adopting ideas from their charismatic branches, they have taken aim at specific parts of the culture, including law and government. They are strategic about placing people in office (and on courts, though they’ve not yet reached the Supreme Court) and creating a pipeline of lawyers to enter government. At this point, Jerry Falwell’s Liberty University is the second-largest Christian university in the US, far bigger than Notre Dame or Wheaton or Bob Jones. Total enrollment is over 110,000 students. We are talking about an ARMY of future lawmakers and other people entering government. No serious GOP leader fails to pay homage there, and Ted Cruz announced his run for presidency on the campus. The university’s debate coach worked with George W. Bush. Alumni have the ear of Washington.
Some of us mistakely thought that the culture wars were over and that, with the folding of the Moral Majority and other organizations and the decline of attendance at conservative churches in the 1980s and 1990s and 2000s, religious conservatives were disappearing. We made that mistake in thinking after the Scopes Monkey Trial, too, and it turns out that these groups were retrenching, forming private schools and radio networks. We see now, not even three years after Obergefell v. Hodges, that they are employing long-view strategy of manipulating the legal system–for example, by creating the facts of a case that didn’t sincerely happen–to their advantage. Bill Jack is just one of many. This is not going to stop at wedding cakes.