//  2/12/18  //  Commentary

Earlier this week, a California state court held that under the First Amendment, a bakery owner may refuse to bake a cake for a same-sex couple. The question is currently before the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and there’s a good chance that Justice Kennedy will determine its outcome. Unfortunately, Justice Kennedy may be in the grip of a false equivalence.

Like California, Colorado has made it illegal to discriminate on the basis of sexual orientation in places that are open to the public, such as bakeries. Like the baker in California, the owner of Masterpiece Cakeshop, Jack Phillips, refused for religious reasons to create custom wedding cakes for same-sex couples. Phillips’ primary claim is that requiring him to serve same-sex couples forces him to speak in favor of same-sex marriage in violation of the Free Speech Clause.

At one point during oral argument Justice Kennedy stated, “[T]olerance is essential in a free society. 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.”

Justice Kennedy’s comment suggests that both parties have equally compelling claims to tolerance. Bakers should be tolerant of customers whose behavior their religion condemns. LGBT customers should be tolerant of the religious beliefs of bakers opposed to same-sex marriage. 

This is a classic case of false equivalence. The claims of the white Christian bakers and gay fiancées are not the same for at least two reasons. (The merchants making these right-to-refuse-service claims have uniformly been white Christians. Check out some cases here, here, here, here, here, here, here, here, here, here, and here,)

First, there is a major power asymmetry between the two groups. White Christians are not a minority group. There is not a long history of discrimination against white Christians. White Christians are not underrepresented in government, business, media, or really anywhere. Moreover, national and state laws providing protection based on race and religion make it illegal to discriminate against someone either because they are white or because they are Christian.

The same is not true for the LGBT community in this country. There is no federal law making it illegal to discriminate against someone because of their sexual orientation. At the state level, fewer than half of states have implemented such protections. Unlike white Christians, in these unprotected locations, gay men and lesbian women can be summarily fired, or denied access to housing, or refused service at restaurants without legal recourse.  

But wait, people argue, a gay baker can refuse to make a Nazi case for white Christians! Isn’t that the same? No. It is not. Bakers can refuse to make a Nazi cake for gay customers too. The refusal is based on Nazism, which is not protected by discrimination law.

Second, what the two parties are seeking is completely different. LGBT customers merely want to be treated like everyone else. They want to be able to walk into a store without worrying that they will be turned away. They do not want to live in world of a separate-but-equal and second-class citizenship. White Christian bakers, on the other hand, want special treatment. They want an exemption from a law that everyone else must follow. Moreover, they want an exemption from anti-discrimination laws. In other words, it is not just that they do not want to follow the law, they want to avoid it in order to discriminate. Tolerating discrimination and tolerating the desire not to be discriminated against are simply not the same. Hopefully Justice Kennedy will realize that.  

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Gerstein Harrow LLP

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