Why Conservatives Can’t Compromise on SOGI Laws

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Last week, the Supreme Court agreed to hear the case of Jack Phillips: Masterpiece Cakeshop v. Colorado Civil Rights Commission. Phillips, the owner of Masterpiece Cakeshop, was found guilty of discrimination by the Colorado Court of Appeals after he declined to create a custom wedding cake for a same-sex wedding ceremony due to his Christian faith. The Court of Appeals ordered Phillips’ family business to create cakes for same-sex couples in the future. They also ordered Phillips and his staff to undergo “re-education” in order to comply with Colorado’s Anti-Discrimination Policy and required the shop to file quarterly reports on their progress for two years.

Colorado is one of 22 states that currently have Sexual Orientation and Gender Identity (SOGI) laws on the books. These laws include LGBT persons as a protected class in state anti-discrimination statutes. However, as Phillips’ case demonstrates, these laws make average citizens liable for their religious and moral beliefs.

Jack Phillips is not the first person to be held liable for practicing his religion. Barronelle Stutzman, a Washington state florist, was found guilty of discrimination for declining to design custom floral arrangements for the same-sex wedding of long-time client and friend, Rob Ingersoll. In Michigan, Steve and Bridget Tennes were banned from selling apples at the city of East Lansing’s farmers market after they explained on Facebook that they could not host same-sex weddings on their orchard. In all of these cases, the vendors cited their Christian faith as the basis of their decision. Their sincerely held religious belief has become a liability under these demanding SOGI laws.

Cases like these illustrate why SOGI policies are a terrible idea and should be done away with entirely.

First, they’re poor policy, as narrow exemptions are not enough to keep these laws from penalizing reasonable, accommodating people who don’t discriminate on the basis of sexual orientation or gender identity. Even more importantly, they set a universally dangerous precedent: empowering the government to legislate morality.

The cases cited earlier explain why some drafts of SOGI laws, like the Utah Compromise, include religious liberty exemptions designed to allay the fears of social conservatives. However, these provisions are insufficient to protect citizens. These exemptions are narrowly written and difficult to obtain. Furthermore, the exemptions are often temporary, as they can be repealed later. Most importantly, these laws stigmatize belief in traditional marriage, which makes it easier to oppress that belief.

That stigma helps to explain why Phillips, Stutzman, and the Tenneses were all held liable for discrimination, even though they all routinely serve LGBT persons. In the case of Stutzman, she had served Ingersoll for years, and particularly enjoyed his appreciation for the artistic value of her work. None of these vendors discriminate against their clientele based on who they are. “I don’t judge people when they come in,” says Jack Phillips. “I try to serve everybody.”

What each case boils down to is an act: a personal participation in the celebration of same-sex marriage through a customized good or service. Phillips, Stutzman, and Tennes all adhere to the Christian belief in traditional marriage and could not in good conscience perform this activity. While they will happily serve the LGBT community in any other capacity, to provide a custom-ordered wedding cake, personalized wedding flowers, or a wedding venue would be a violation of conscience. “It’s my pleasure to sell them cookies and cakes and birthday cakes and brownies. It’s not their lifestyle that I’m accused of turning away. . . . It was the event I’m being forced to celebrate,” says Phillips. Hence what is at stake in all of these cases is the fundamental right to do as one ought; to act in accordance with one’s religious and moral beliefs without being penalized.

Nevertheless, all of these vendors faced legal ramifications for being on “the wrong side of history.” Jack Phillips was found guilty of discrimination and compared to a slave owner and a Nazi for his convictions. Barronelle Stutzman paid hundreds of thousands of dollars in legal fees. The Tenneses were informed by the city of East Lansing that they were no longer welcome at the local farmers market. The message was clear: Choose between your beliefs and your business.

“This isn’t just about our ability to sell at the farmers market,” says Steve Tennes, “This is really about every American’s right to be able to make a living and not have to worry about the fear of being punished by the government.”

Moreover, Phillips, Stutzman, and the Tenneses did not have a monopoly on cakes, flowers, or apples. They were perfectly reasonable and attempted to accommodate customers in whatever way they could shy of violating their beliefs. There were several bakeries other than Masterpiece Cakes that were happy to provide their artistic expertise to the couple that inquired with Phillips. One such bakery ultimately provided a rainbow cake for the event — indicative of the highly personal nature of the order Phillips turned down. Stutzman offered Ingersoll any of her standard arrangements, and other businesses could have supplied custom work. In the Facebook post that cost the Tenneses their spot in the local farmers market, the Tenneses even offered to refer same-sex couples to a competing vendor. Alternatives were available when commerce intersected with conscience. Theoretically, everyone should have been able to get what they wanted.

However, SOGI laws do not stop at preventing arbitrary and unjust discrimination. Compromise is off the table because the law is geared towards stigmatizing traditional sexual ethics and holding citizens accountable to a moral claim — the affirmation of same-sex marriage and transgender ideology. These laws empower the government to make that opinion a prerequisite to public life.

This degree of government control should make both ends of the political spectrum uneasy. What about the designers who refused to dress the First Lady, or the choir that refused to sing at the Inauguration? What if Donald Trump could force these individuals to design and perform against their deepest convictions? It may only be a matter of time before today’s victors are tomorrow’s victims, which is why everyone should oppose SOGI laws and the dangerous precedent they set.

So what now? Regarding practical political solutions, the government ought to respect the First Amendment rights of all Americans, regardless of whether those beliefs are popular or not. Congress should continue to oppose SOGI laws at the federal level, and individual states should oppose and repeal similar bills. Finally, the Supreme Court ought to rule in favor of Jack Phillips and establish once and for all the unconstitutional nature of SOGI laws which infringe upon the First Amendment.

Meanwhile, we should all oppose SOGI laws and continue to fight for the free expression of even our political opponents. As the saying goes, “I disapprove of what you say, but I will defend to the death your right to say it.” If America is to remain a meaningfully free country, we should heed these words, lest they become a self-fulfilling prophesy.


Monica Burke

Monica Burke is a researcher for APP's Religious Freedom Program.