Yesterday, we discussed some of the legal issues that will likely come up during today’s oral argument in Masterpiece Cakeshop. Today I want to talk more broadly about the implications of this case being brought in the first place.
In short, Masterpiece does not just seek a license to discriminate; it seeks a license to discriminate enshrined in and protected by law.
Masterpiece’s religious owner and his conservative allies don’t want to be the exceptions. They want to be the rule, like Jim Crow was the rule in the South. They seek a legal regime in which anyone can opt out of any law in the name of religion. They seek a world in which laws apply to other people, not them. They seek a world in which no one tells them what to do.
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These arguments are simultaneously rooted in history and unique to our political moment. How can that be?
It is hard to read the arguments coming from Masterpiece and its conservative allies — “My religion tells me that homosexuality is wrong and I shouldn’t have to endorse or participate in something I find morally abhorrent,” for example — and not think about Jim Crow South. In 1964 and 1965, black Americans at the vanguard of the civil rights movement drove in to drive-in restaurants, sat at lunch counters, and walked into motels only to be turned away because they were black. Those establishments, by law, only served whites. In every single public accommodations case of the era, white business owners argued that their religious beliefs conflicted with the prospect of integrating the races: “My religion tells me that black persons should not be mixing with white folks and I shouldn’t have to endorse or participate in something I find morally abhorrent.”
Black patrons won their cases over the next 5 years, as various public accommodations cases made their way through the federal courts. The Supreme Court addressed this religion argument directly, calling the religious pretext to discriminate “patently frivolous.”
How is it possible, then, that we find ourselves back at the Supreme Court litigating the same question?
It would be easy, but lazy, to say that there is something special about gays. We are special, sure, but the echoes to the civil rights movement are too stark. And the hatred Christian conservatives have for us is at least on par with the hatred they had for racial integration in the 1960s.
The truth is that conservatives never accepted the federal court civil rights decisions as legitimate. Since the 1960s, right wing jurists, law students, lawyers, and politicians have come together in advocacy organizations, board rooms, law schools, universities, and think tanks to develop a long con to undermine and ultimately undo civil rights. For everyone.
They chose a familiar argument — states’ rights — that served the slave states well for decades. They glommed onto a theory of constitutional interpretation — originalism — that gave them a pretext to create an America that literally looked like the America of 1789. They built the Federalist Society that captures young conservative minds in law schools and turns them into Neil Gorsuch-es. And they boldly challenged what most of us thought were long-accepted norms and precedents.
Between 1965 and 2017, they had quite a few notable milestone successes. The conservative William Rehnquist, for a time a lone dissenter on the Supreme Court, was joined by Antonin Scalia, an original originalist, in 1986. Their duo became a trio with the even more conservative Clarence Thomas, who doesn’t even believe that public accommodations laws are legitimate, in 1991. These men, and many that followed, have always wanted to relitigate the otherwise settled cases of the civil rights movement. LGBTQ Americans are now the targets.
Undermining long-settled precedent and norms grew to a hysterical pitch in the Republican Party during the Obama Era and, ultimately, in Donald Trump. Republicans challenged Obamacare, claiming once again that a business owner’s religious beliefs — this time about contraception — trump the law of the land. They argued that part of the Civil Rights Act that protected minority voters in the South should be held unconstitutional because racism doesn’t exist anymore. They argued that public employees should not have to do their jobs because free speech, religion, or something.
Masterpiece Cakeshop did not pop up out of nowhere. It is the apotheosis of decades of conservative work to undermine the vestiges of progressivism and equality in the modern liberal state. The only people standing in their way are two gay men in love (and their lawyers). And that’s a battle we must, and will, win.