Debunking ADF’s bad logic is piece of cake (*but not art)

At a recent meeting before a group of fellow lawyers, Kristen Waggoner, the Alliance Defending Freedom attorney who will be representing Jack Phillips before the United States Supreme Court, is quoted as saying that the discriminatory baker’s case isn’t “about the who, it’s about the what.” To which I reply: what?

You’ve likely heard about this case. This is the one out of Colorado where the owner of a business called Masterpiece Cakeshop refused to sell a wedding cake to a gay couple. The couple in question, David Mullins and Charlie Craig, didn’t even get the chance to specify what sort of design they might want on the cake, so there wasn’t any one message or theme to which Mr. Phillips objected. The baker simply refused to consider the request to sell the couple the very same product that he has gladly sold to straight couples for decades prior. It’s a very straightforward case of discrimination, and up to this point, every panel to weigh in on the case has sided with fairness.

The Supreme Court is a different beast, however. The high court has long tilted toward the conservative, and even more so with the addition of Neil Gorsuch. The Alliance Defending Freedom knows this is a major chance for them to regain the miles of ground they lost when marriage equality was legalized across the nation, and they are carefully crafting their arguments so that they seem persuasive, mainstream, and on the right side of history.

Of course, the truth is that this case is all about “the who.” It’s about one man who purported to sell wedding cakes to all-comers, but who didn’t uphold his commitment as a business owner. It’s about a loving couple whose money was rendered no good by nothing more than their sexual orientation. And in the broadest sense, it’s about every “who” in this country who believes nondiscrimination policies are a net good for our communities and our economies, as an ADF win in this case would place every such policy, and every minority population, under severe threat.

On one hand, it’s no surprise that the ADF lawyer is attempting to distance her client from the gay couple that he pointedly rejected, since denying discriminatory intent is the only chance they have of winning before the high court. But still, one does have to marvel at this, an attempt by an organization whose long record of anti-LGBTQ animus has landed it on the Southern Poverty Law Center’s list of known hate groups, to say that a cruel act in which a loving couple was turned away is really not about the couple at all, but rather about a cake. And it’s just one of ADF’s many flawed talking points in this case.

As a way to sell the idea that this case is about a product rather than fair business practices, ADF has also made central to its case the claim that a wedding cake is really more like art than like commerce. But the truth is that even gallery art is a commodity if that art is put on sale in a shop. Mr. Phillips advertised himself as a man who sells a commodity commonly known as a wedding cake. The couple at the center of this case requested that very commodity, without even offering up any details about how they would like to customize that commodity. Mr. Phillips told them they couldn’t have that commodity, and the sole reason he denied them the request is because they were two men. And what he denied them was a business product that he purports to sell.

Most of us are asking “Is it discrimination?” while ADF is asking “but isn’t it pretty?” The product might be gorgeous, but the discrimination is quite ugly.

In other commentaries, ADF staff members have pushed the notion that vendors like Mr. Phillips should be enthusiastic about an event if they are going to agree to work on it. Sure, it’s a nice idea. It’s also a legally meaningless one. In a perfect world, everyone who ever sells you anything, be it a good or a service or somewhere in-between, would be enamored with you and every aspect of your life. But a business owner’s excitement is an untenable standard, even more so for the business owners themselves than for the customers.

One can discriminate “nicely” or accommodate rudely, and it won’t change the issue. The issue is the discrimination or accommodation, not the smile or frown attached to those choices. It is silly to suggest that wedding professionals are somehow lacking in their job if they fail to make a “special and unique” connection to a person who is paying them for their services.

The other major claim that ADF likes to tout is one about coercive government. ADF Senior Counsel Jim Campbell insists that “if the government has its way, it would compel not just cake artists to celebrate what their faith prohibits, but other professionals who create art for a living, such as graphic designers, filmmakers, photographers, and painters.” And he’s right that this is not the role of government. But it’s also not anyone’s goal in this or any related case.

No, the government cannot tell a painter he has to paint something he doesn’t wish to paint, a sculptor that he must design a statue outside of his interest area, or a soloist that she must sing an opera for which she doesn’t seek an audition. Every artist, and every business owner, has the right to set his or her own performance slate, gallery presentation, menu, or product line. The Jewish chef need not sell pork, and the Christian baker does not have to purchase cake pans that are shaped like menorahs. Champions of fair-minded nondiscrimination policy don’t want to change this, and progressives would be the first ones to speak out of the government did have this goal.

But Jack Phillips does indeed choose to sell wedding cakes. No government told him to do so. He loves selling wedding cakes. They are kind of his thing. He just doesn’t want to sell one to a gay couple. He loves mixing together the eggs and the milk and the flour and the sugar and then baking it all up into a pretty pastry suitable for a wedding reception’ s silver platter. He just refuses to make that product—the very same product that he does, in fact, sell—for customers who love in a way with which he disagrees.

We have a word for that in society. That word is discrimination.

To learn more about this case and what's at stake, visit