Dog Whistles and Holes in the Masterpiece Cakeshop Arguments?

If nothing else, Tuesday’s oral arguments in the Masterpiece Cakeshop case make clear that the ghosts of the pre-Obergefell world—indeed of the world before the Court’s 2003 decision against sodomy laws in Lawrence v. Texas—are still with us. Whispers of the past crept into one of the most revealing moments in yesterday’s argument, when Justice Elena Kagan asked Kristen Waggoner whether Jack Phillips, the baker, would be entitled to the same defense if his religious beliefs dictated that he not create custom cakes for interracial marriages.

“Very different case in that context,” Waggoner replied.

Kagan followed up: “How about if he objected to an interreligious” marriage? “Similar case,” responded Waggoner. “Similar to Mr. Phillips. That would be protected… if the objection is to the message being conveyed in that expression.”

Solicitor General Francisco gave a similar response when asked by Justice Ruth Bader Ginsburg about the difference between discrimination on the basis of race as opposed to other categories, like gender, religion, and sexual orientation. “[R]ace is particularly unique,” Francisco said, and “pretty much anything but race would fall in the same category.”

On one level, Waggoner and Francisco were simply echoing an extensive series of rulings that have recognized that the government has a particularly compelling interest in preventing racial discrimination, as in the 1968 case Newman v. Piggie Park Enterprises when the Court refused to countenance a restaurateur’s argument that nondiscrimination laws were coercing him to serve black customers in violation of his religious beliefs. Courts have typically applied “strict scrutiny” to laws that involve “suspect classifications,” categories like race that have historically been used to disadvantage some and favor others. Although the Supreme Court has not formally applied either strict scrutiny or the lower “intermediate scrutiny” standard to religion, its First Amendment doctrine requires the government to demonstrate that it has a sufficiently compelling interest if it seeks to burden religious practice.

Problem is, Waggoner and Francisco either didn’t have such analysis in mind, or they were mistaken, for otherwise they would have told the justices that opposition to interreligious marriage is analogous to opposition to interracial marriage. Instead, they resolutely maintained that Phillips could permissibly have denied service to an interreligious couple or, as happened in real life, a same-sex couple, even though he wouldn’t have been within his rights to do so to an interracial one.

What should we make of their reasoning?

Let’s consider a different distinction on which Waggoner and Francisco also relied. They consistently maintained that Phillips did not act against Craig and Mullins because of who they are (gay men) but rather because of what they were doing (getting married) and what message they wished to commission him to convey (that their marriage is worthy of celebration).

Courts have increasingly, even if implicitly, rejected the distinction between status (or identity) and conduct in the context of LGBT rights, recognizing that behaviors like getting married to a person of the same sex are so closely linked to gay and lesbian identities that the distinction is one without a difference. Here, Waggoner and Francisco didn’t so much rehash this discarded line of argument as subtly reframe it as a distinction between speech about identity as opposed to speech about conduct. Phillips has been clear that he would have sold Craig and Mullins premade baked goods, and there is no evidence that he would not have baked them birthday cakes. It was only when they requested Phillips to create a cake to help celebrate a form of conduct that is highly specific to gay and lesbian people (i.e., same-sex marriage) that he balked.

If we go one layer deeper, though, we come upon hints of a disturbing assumption. Is it possible that Waggoner and Francisco felt more comfortable drawing a distinction between identity and conduct in the context of sexual orientation than in the context of race because of the long history of arguments that our sexual identities are chosen rather than given?

Whereas race isn’t something for which people can be held responsible, it was once widely believed that being gay (and, certainly, acting in ways distinctive to gay and lesbian people) is something a person chooses. Or, in the slightly more nuanced and much more theological version of the same argument advanced by the Vatican in a series of communiqués in the 1990s and early 2000s, a person might regretfully find him- or herself suffering from “same-sex attraction” and keep that fact within a small circle of loved ones, but to announce that one is “gay” would be to align oneself with a social and political agenda.

If Waggoner and Francisco wanted to signal their sympathy with these older understandings of sexual identity, emphasizing that Phillips could not refuse to serve interracial couples (but could deny service to interreligious and same-sex couples) is one way for them to do so. As we have already seen, their proposition makes little sense in terms of strict scrutiny, and in fact the Colorado law at issue in Masterpiece Cakeshop likewise does not differentiate among the kinds of discrimination from which it seeks to protect citizens.

Waggoner’s and Francisco’s claims only make sense if they are telegraphing to the Court’s more conservative justices another kind of message: that it’s permissible for Phillips to discriminate against same-sex couples, as against people who marry across religious lines, because he disapproves of their moral choices. Perhaps Waggoner employed an even more subtle version of this kind of telegraphing when she made certain to remind the justices that Craig and Mullins ultimately obtained a “rainbow-layered cake,” an emblem not simply of their identity but of their investment in the LGBT rights movement.

If part of Waggoner’s and Francisco’s strategy was to dredge up earlier forms of opposition to the full human rights of LGBT people, only in the middle of next year will we know whether they succeeded. The swing vote in Masterpiece Cakeshop, as in the majority of gay rights cases over the past decade, will almost certainly be that of Justice Anthony Kennedy. He asked tough questions of both sides of Tuesday’s argument, including asking Francisco whether Phillips would give “an affront to the gay community” if he announced publicly that he does not create cakes for same-sex weddings. Yet Kennedy seemed to warm to the idea that Phillips refused service to Craig and Mullins for reasons that went beyond their identity.

Addressing the men’s attorney, David Cole, Kennedy characterized Phillips’s refusal as communicating his belief that “I have nothing against gay people… but I just don’t think they should have a marriage because it’s contrary to my beliefs…. It’s not their identity; it’s what they’re doing.” Turning then to Cole, Kennedy concluded, “your identity thing is just too facile.”

It would be ironic if the author of the Court’s groundbreaking decisions in Lawrence, Windsor v. U.S., and Obergefell were also to be the one to cast the deciding vote in the first post-Obergefell decision that would restrict the rights of LGBT people. And it would simply be a travesty if Kennedy did so in part because of veiled attempts to resuscitate the very anti-gay rhetoric whose influence he has done so much to limit.