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The Illiberal Cake We’re Baking

Nicholas Marr was a 2018-2019 Young Scholar Awards Program recipient. He is currently a senior at the University of Notre Dame, majoring in political science and history.

In May, the U.S. House passed H.R. 5, the “Equality Act,” on a near–party-line vote. It would write sexual orientation and gender identity (SOGI) into federal civil-rights law and explicitly roll back religious liberty protections, enabling the government to coerce hospitals into removing healthy reproductive organs in sex-transition surgeries, force employers to cover and doctors to perform abortions, and remove grants from adoption agencies and accreditation from colleges. Sex-specific spaces—from female athletics to prisons and homeless shelters for abused women—would have to admit biological males.

Though the Equality Act does not live up to its name, efforts to extend federal civil-rights protections to LGBT Americans generally receive public support.

Should social conservatives seek legislative protection while they still can? Some on the right think so, proposing a “Fairness for All” approach to extending federal civil-rights law. While there is no publicly available bill yet, it would extend anti-discrimination law—as H.R. 5 does—but also exempt faith-based institutions, and perhaps religious individuals, in an effort to protect them from unjust coercion.

Proponents argue that the 2015 “Utah compromise” and the 2018 Supreme Court ruling in Masterpiece Cakeshop prove that effective compromise is possible. But Utah’s policy included broad and heavily criticized exemptions in a SOGI law, which did not even cover public accommodations, because it was enacted by Republican and Mormon leadership. Masterpiece, meanwhile, was so narrow that it likely will not change the outcome of similar anti-discrimination cases. The Washington State Supreme Court reviewed the case of a Christian florist in light of Masterpiece and again found she had wrongfully discriminated.

The FFA approach cannot resolve what essentially is a zero – sum game, especially in this cultural climate. My study explores the flaws in SOGI public-accommodations law and challenges the notion that extending anti-discrimination measures to cover LGBT interests will serve the common good as long as certain exemptions are provided.

The last several years of Jack Phillips’ life exemplify the consequences of enacting these laws. He no longer crafts wedding cakes, has lost 40 percent of his business, and is being sued a third time––this time for declining to make a cake celebrating a gender-transition, and he has not even faced the worst consequences of gender ideology. Phillips, like countless Americans, believes marriage is a union between one man and one woman and that biological sex determines important realities. He operates his business in accord with these beliefs.

It is possible that the only case of sexual-orientation based “discrimination” in public accommodations that the Colorado Civil Rights Commission pursued in 2012 was the case against Phillips­­. Progressive law professor and gay-rights advocate Andrew Koppelman considers it, as he has written, one of a “handful [of cases] in a country of 300 million people” in which people refused to celebrate a same-sex wedding but did not make “claims of a right to simply refuse to deal with gay people.”

This is the heart of the controversy. Phillips’s objection is to participating in—and thereby affirming, particular conduct, not a person’s identity. Why, then, do some find it so difficult to tolerate him?

The actions against Phillips are a form of religious zealotry. As Phillip Muñoz articulates, “Like heretics of old, Phillips is being persecuted by authorities who seek to enforce their dogmas.” He dissented from a certain orthodoxy, and in the view of Colorado’s commission, deserves punishment.

This view is not confined to Colorado. After the U.S. House passed H.R. 5, Speaker Nancy Pelosi announced on Twitter, “Conversations surrounding America’s LGBTQ community have focused on ‘tolerance.’ But tolerance is a condescending word. As we pass the #EqualityAct today, we take pride in this community and all they have & will achieve.” She seems to interpret toleration as an insult, forgetting that religious toleration is the hallmark achievement of liberalism. But, as she admits, the proposed law is not about tolerating. It’s about preferring one small group—and as a result, it precludes toleration.

Anti-discrimination laws are powerful, and rightly so. Enacted properly and in the right circumstances, they marginalize those who act on evil ideas, the way those who are racist are treated. SOGI laws, on the other hand, fail to articulate what constitutes sexual-orientation or gender-identity discrimination. Simultaneously, they leave no room for dissent from their animating premise: that there should be no restraints—theological, natural, moral, or cultural—on any choices or conduct regarding the body and sexuality. Refusal to participate in enabling those choices is not tolerated.

Exemptions cannot protect dissenters against this view, and this view will always pare them down. Of course, exemptions can’t protect secular people or groups either. Supporters of religious individuals and faith-based institutions should focus not on obtaining exemptions, but on defending the appropriate distinctions that they make in matters of human nature and sexuality. They should begin by rolling back––not advancing––SOGI laws that cover public accommodations.

It can be wise to encourage compromise, especially in a diverse and democratic society. But in these circumstances, the proposed compromise of the “Fairness for All” approach is unwise. A compromise that extends federal anti-discrimination law to cover SOGI will serve only the interests of a small group at the expense of countless others, including our constitutional structure and our society’s common good.