(Originally published with slight variation as my Mombian newspaper column.) In one of my son’s favorite video games, an artificial intelligence system promises the player cake if she completes various challenges. As the player proceeds through the game, however, she finds graffiti claiming “The cake is a lie,” and it becomes clear that the AI is stringing her along with malicious intent. The Trump administration has similarly revealed the lie of its promised friendship—its “cake”—to the LGBTQ community. (Remember the image of then-candidate Trump holding a rainbow flag at a rally almost exactly a year ago?) Fittingly, the latest confirmation of the administration’s true intent revolves around actual cake.
That’s right. Bakeries are now in the front lines of the fight for LGBTQ equality in the U.S. A case before the U.S. Supreme Court will consider whether a baker has the right to refuse to make wedding cakes for same-sex couples–a case that could have ramifications for other businesses and organizations that wish to cite religious beliefs as a reason to refuse service to anyone. It isn’t the first time pastry has become a flashpoint for LGBTQ equality, however.
The Supreme Court case involves Masterpiece Cakeshop in Colorado, where in 2012, David Mullins and Charlie Craig tried to order a cake for their wedding reception. Bakery owner Jack Phillips told them that his religious beliefs prevented him from baking a cake for same-sex nuptials. The couple filed complaints with the Colorado Civil Rights Division (CCRD), noting that state public accommodations laws prohibit businesses from refusing service because of a person’s sexual orientation, among other things. The CCRD ruled in their favor.
Masterpiece appealed, this time with the aid of the Alliance Defending Freedom, which has been classified as a hate group by the Southern Poverty Law Center. The state Court of Appeals affirmed the CCRD’s ruling and the Colorado Supreme Court declined to hear the case. Masterpiece pressed on, and the U.S. Supreme Court the past June said it would consider the case, with oral arguments starting December 5. The Trump administration’s Department of Justice filed a brief in September in support of Masterpiece, and on October 25 asked for time to speak during oral arguments,
This is only the latest in a number of cake-related acts of discrimination around the country. An Indiana bakery in 2010 refused to make rainbow frosted cupcakes for a college LGBTQ group’s National Coming Out Day celebration. One in Iowa refused to make a wedding cake for a two-woman couple in 2011, and another in Oregon did the same in 2013. A California bakery refused both a two-woman and two-man couple this past August.
Of course, there are others who have wielded their whisks in support of LGBTQ equality. A number of prominent bakers and chefs in October signed on to a “friend of the court” brief that HRC is submitting in the Masterpiece case. Even before that, however, Marjorie Silva, owner of Azucar Bakery in Colorado, in 2014 refused to make two bible-shaped cakes with anti-gay images and phrases like “God hates gays.” She told the patron, William Jack, that she would bake the basic cakes, but provide him with a bag of icing so he could decorate them himself. He claimed discrimination, but the CCRD ruled that Silva’s refusal was based on the cakes’ “derogatory language and imagery” rather than discrimination, and therefore permissible.
On a more upbeat note, General Mills’ Betty Crocker brand in 2013 donated cakes to the first three same-sex couples to marry legally in Minnesota. The donation was part of the brand’s same-sex-inclusive Families Project, “a mission to understand what it means to be a family.”
And Pastry chef Duff Goldman, owner of Baltimore’s Charm City Cakes and star of Food Network show “Ace of Cakes,” heard of the Oregon couple’s plight in 2013 and offered to make and send them a cake free of charge. He told himself, “I can do something, there’s injustice involving a cake!” he related to HuffPost Live.
It was an admirable gesture—but just as some NFL players’ refusal to kneel for the National Anthem isn’t really about the flag or football, but about systemic racism, these incidents aren’t really about cakes. They’re the frosting-covered tip of a much larger iceberg of laws and lawsuits aimed at allowing anti-LGBTQ and other discrimination in the name of religious freedom.
Many of these efforts are aimed directly at families and children (although some have an even wider purview). Seven states (Alabama, Mississippi, Michigan, North Dakota, South Dakota, Texas, and Virginia) already allow state-licensed child welfare agencies to refuse to place children with LGBTQ foster or adoptive parents (or refuse to place an LGBTQ youth with accepting parents) if doing so conflicts with their religious beliefs.
That’s why “friend of the court” (amicus) briefs have been filed by Family Equality Council and Lambda Legal as well as others to show how a ruling in favor of Masterpiece Cakeshop would cause harm to LGBTQ parents and our children. The Family Equality/Lambda brief, among other incidents, shares the story of a two-mom couple that was denied service by several midwives because of the providers’ religious beliefs, turned away from a birthing class, and later denied service when seeking to enroll their son in a childcare facility. Another family was denied service from a pediatric dentist who refused to treat their child after an accident without the biological mother, whom the dentist saw as the “real mother”—present, despite both mothers being legally recognized parents. Yet another was denied treatment for infertility.
In another brief, submitted by law professor Catherine Smith and a number of other legal scholars in Denver and elsewhere, the authors relate that:
In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational private school rejected enrollment for a pre-kindergartener and his 8-month-old sister after discovering that the children had two dads.
They conclude:
To permit business owners to engage in sexual orientation discrimination, cloaked in religious or expressive exemptions, will deny children of LGBT parents equal access to the public sphere, inflict psychological harm, and interfere with their family integrity because of their relationship to or association with their parents.
The harm goes beyond just our families, however:
In addition to harming LGBT citizens and their children, an exemption will harm communities by balkanizing and segregating people based on group membership in contravention of the aims of public accommodation and anti-discrimination laws. Such laws also violate the text and spirit of this Court’s most recent acknowledgement of the equality of same-sex couples and their families in Obergefell and Windsor.
How can we help prevent opponents of equality from prevailing? One idea is to make a financial donation to Family Equality, Lambda, or the ACLU (which is representing the same-sex couple in the case), if you have the means. Or perhaps—dare I say—hold a bake sale and send them the proceeds.
