Why Conservatives Can’t Compromise on SOGI Laws

July 6, 2017

by Monica Burke


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 is a researcher for APP's Religious Freedom Program.

Archive: Monica Burke

12 comments on “Why Conservatives Can’t Compromise on SOGI Laws”

  • Dave says:

    Would you eat a cake made by someone who doesn’t appreciate your way of life?
    I notice that the above comments seem to equate being non-Caucasian with being ‘GAY’ there is a world of difference! God created man AND woman (excluding Darvin) He didn’t create umpteen different categories of humans.

    • jui says:

      You say: Would you eat a cake made by someone who doesn’t appreciate your way of life?

      First of all, when I enter a public accommodation I expect to be served just like anyone else. That’s the law. Don’t flatter yourself into thinking I care if you appreciate my way of life. I don’t. I expect service. Otherwise, don’t open a public accommodation. Keep your bias in your church.

  • Thom Stewart says:

    You are wrong about “right wing religionists” ! The Southern states were the entire crux of bigotry, period! They tried with everything they had to stop the 13th, 14th, and 15th Amendments from passing “Right Wing” votes in favor of those amendments were 100% and democrat “left wing” votes in favor of them were zero, with the exception of the 13th amendment which garnered a 23% democrat support. Democrat, “left wing” judges upheld Jim Crow Laws, Dred Scott laws, separate but “equal” statutes, and fought anti lynching laws. Right up until 1964, 7 democratic southern states issued poll taxes to vote. A democrat Governor (George Wallace) blocked entrance to a state college screaming “segregation now, segregation forever!” The Southern democrat state legislatures looked the other way with regard to things as small as segregated drinking fountains, and, before you chime in with the vaunted and fictional “political shift” of some indeterminate period, there is no record of such an act in the Congressional Record, in the archives of any news paper, anywhere, or any record of the wildfire anger such an act would have drawn from the “former” racist supporters that would have seen this as abject betrayal, at best! You will find NO historic record of “right wing” racism that begins to compare with the generational and institutional racism of democrats. You will no doubt find the scarce individual right wing moron here and there, but the ratio of left wing to right wing intolerance is more than 1,000 to 1. For more information on this, you can visit Starr Parker’s http://www.urbancure.org which, as I believe it makes a difference to you, is a Black owned, staffed, and operated political site originated by her to fight just the kind of misinformation you represent here.

    • jk105 says:

      Thanks for proving my point Tommy!
      Right Wing Religionists (in particular Southern Baptists) based their racist discrimination on their interpretation of the Bible. They demanded their religious liberty to treat blacks like second-class citizens.
      Today contemporary Right Wing Religionists invoke their so-called “religion” to discriminate against gay people. Bigots.

    • jk105 says:

      Those democrats became republicans. Debate it all you want, but the fact remains they were Right Wing Religionists. Bigots then and Bigots today.

    • Rebecca says:

      These are some of the nastiest comments I’ve read in a while. I can understand why a Christian would not want to be around these commenters who claim to be homosexual. Plus, they are lying about what the Bible says. The Bible is against homosexuality and pro one man one woman marriage. It says so starting in Genesis. In the 1970s the communists like Lenore Weitzman worked to change the marital laws to get rid of the Christian ones and make new ones for non-Christians, including homosexuals. The government wants homosexuality to reign and so lets the Weitzmans of the world have their way. The first George Bush declared LGBT month a long time ago. It’s the ongoing NWO stuff as he stated.

    • jui says:

      Rebecca is confused. The most anti-gay countries in the world are communist–Russia and Cuba, for instance.

      And if you are compelled to literally follow every word in the Bible, you then support slavery, kill disobedient children and execute those who work on the Sabbath.

  • SAF says:

    What makes Jesus vomit are the heretics who hide like cockroaches beneath the pews of the bourgeoisie “feel good” oh-so-politically correct “religions” while they spit in His face.

    Monica is a true disciple and nothing could be more blasphemous than to defend something as sacrilegious as homosexual “marriage.”

    “Gay” people need to realize that nobody cares about their obsession with their own “sexual preference” and they need to respect the norms of humanity and the teachings of Jesus Christ that clearly condemn homosexuality.

    Monica speaks the truth so you slay the messenger? No, Monica is not the “disgusting bigot.” Those who are so incontinent that they can not control their sexual avarice yet expect Jesus Christ to yield to their evil are the disgusting bigots.

    • jui says:

      jk is correct.
      Jesus is never quoted saying anything about homosexuality. However He had plenty to say against divorce. This baker abandons his Bible when he admits to baking cakes for people who are divorced. He is a hypocrite. Some Christian!

  • Thom Stewart says:

    This is a truly clear, straight forward column. Can no one see the “Big Brother”, “1984” realization here? We have, at lesser learned times in the past, experienced levels of “ok for me, but not for thee” laws that people were forced to live under. Perhaps the biggest and most horrific example would be slavery, where an entire race of people were forced to live under standards that they had no say in and were required to follow, under pain of death, just because of who they were. For decades even freed slaves lived beneath a second class citizen status with no relief in sight. It took more than a hundred years for this to end. Now the same group of people who saw them as property has championed unnatural, divisive, and morally unenforceable laws against people of decent reputation and long held beliefs, regardless of second amendment guarantees. We do not encourage diminishment of their lives, we simply ask to be left out of them. We do not wish to be asked to, even figuratively, condone that which we find against the natural order of things. Democrats were the people who made the “normalization” of people of African American decent difficult to accomplish for nothing less than economic reasons. They could not compete with the world in the cotton trade without slave labor. Now they want to destroy Christian ethics and punish people who hold them. None of these people refused to serve Gay or transgender people in the common operation of the day providing product for uses common to us all and necessary for day to day existence. Now they are asked to PARTICIPATE in the tacit approval of actions and moral beliefs that they hold to be wrong. If I were a baker and refused to serve, for example, a democrat because I do not believe in their practices, I would be within the law. I can not be forced to serve someone because I strongly disagree, politically, with them, and they can legally refuse me under the same Constitutional rights. Tens of thousands of businesses have signs displayed on the premises stating that “We reserve the right to refuse service to anyone!’ These are accepted and legal. I can do this because I don’t like their coat, their car, their attitude, or their behavior. It is my established right. We are being told that we have no right to NOT participate in that which we find against what we hold as true belief. We do not propose any sort of harm or damage to them, we simply do not wish to condone that which we do not accept as natural. Will I beheld to account if I refuse service to a White Power advocate? How about an anti hunter? Will I be required to serve a known rapist or pedophile? Exactly how much first amendment right am I allowed? This is thought control and nothing less!

    • jk105 says:

      The immoral degenerate running that bakery is in a secular business. He signed a contract to get a business license promising to obey by the law, a law that holds gay people to be a protected class, protected by anti-discrimination laws. So yes, you can discriminate against someone whose coat you don’t like. They aren’t a protected class. But no, you can’t discriminate against blacks and gays.

      And Big Brother? I am sure you join me in condemning the Right Wing Religionists who would use to brute force of government to deny churches the right to perform legal same sex marriages. If you hate Big Brother, look in the mirror Bro.

    • Gozo says:

      “Democrats were the people who made the ‘normalization’ of people of African American decent difficult to accomplish for nothing less than economic reasons.”

      #### THIS IS MISTAKEN: “Conservative Southerners” prevented that “normalization. That Conservative and Southern portion of the Democratic Party left the Democrats beginning in the 1968 elections. Where Southern and rural Conservatives once formed a key bloc of Democratic voters, they now play a similar role as Republican voters.

      #### The best evidence of this fact is the change of formerly Democratic (Blue) states to predominately Republican (Red) states—rural and Southern—today. This “inconvenient truth” undermines the premise of the War on Christianity idea.

      ##### In our non-commercial and private lives, we get to follow our consciences almost-entirely (though Conservatives must fund contraception and Quakers must fund war).

      ##### The United States Constitution strives to make it so that all citizens can live their lives secure in expectation of honest, uncompromising, non-discriminatory government and commercial practices, no matter where they go.

      ##### Respectfully submitted, even as I am certain, here, of being dismissed.

Leave a Reply

Your email address will not be published. Required fields are marked *