Wednesday, December 13, 2017

The craziest argument yet in favor of Masterpiece Cakeshop

Peter Sprigg
Every hate group has a propagandist like Peter Sprigg
Peter Sprigg, Family Research Council's “expert” on all things LGBT has a legal theory. It starts with a familiar argument. Dumb but familiar:
Now, before discussing the question of whether “discrimination” based on “sexual orientation” is the same as racial discrimination, let me state my own view that refusing to participate in a same-sex wedding does not constitute discrimination based on “sexual orientation” at all. Phillips’ principal objection stems primarily from his religious beliefs about the definition of marriage (that it is inherently a union of one man and one woman) and his beliefs about the appropriate boundaries of sexual conduct (that it should only take place in the context of a marriage so defined). This has nothing inherently to do with the “sexual orientation” of the individuals involved.
These people are committed to the logical fallacy of begging the question. Baking a damned cake is not participation. At the reception (Phillips would not have been an invited guest) no one will care who baked the cake.

Sprigg's form of intellectual dishonesty has not been successful at the Supreme Court in the past. The late Justice Scalia once wrote “A tax on wearing yarmulkes is a tax on Jews.” Marriage is a fundamental constitutional right of great importance. Discrimination on the basis of same-sex marriage is discrimination based on sexual orientation. It is impossible to separate sexual orientation from a fundamental civil right of gay people.

Now comes the crazy:
Phillips would bake a cake for a wedding of two people who self-identify as homosexual—if they were of the opposite sex. And he would not bake a cake for a same-sex wedding, even if the individuals involved identified as heterosexual. If those examples sound absurd, it is only because in our time we have a cultural assumption that an indispensable purpose of marriage is the gratification of sexual desires. Yet that is an assumption about marriage that has by no means been universal in all times and all cultures, and the Court need not adopt it as a legal assumption today.
Thanks Mr. Sprigg. Those examples seem absurd because they are absurd. Just how likely is it that a gay man marries a lesbian (unless both are pretending to be ex-gay)? Just how often do two straight men or women enter into same-sex marriages? No, Mr. Sprigg, this has nothing to do with some notion that we believe that marriage is about sexual gratification. That is Sprigg's assumption as a pretext for his preposterous premise. Marriage is mostly about creating a marital estate for a loving couple and their children. I'm no expert but having sex — the last time I checked — does not require married participants. Or is Sprigg suggesting that only gay people marry-to-fuck?

A frequent argument, one make by Alliance Defending Freedom, is that Phillips happily serves gay people all the time. When did Mr. Phillips start asking customers what their sexual orientation is and for what purpose? I have read numerous arguments but I have yet to entertain a valid assertion as to why a public accommodation gets to approve and disapprove of customers based on sexual orientation and contrary to local law.

And crazier still:
I have argued elsewhere that the reason classifications based on race are subjected to the highest scrutiny is because race is, indisputably, a characteristic that is inborn, involuntary, immutable, innocuous, and in the Constitution. “Sexual orientation” does not meet the same criteria. In fact, its definition is not entirely clear, since depending on the context, it may refer to a person’s sexual attractions, their sexual behavior, or their self-identification, or some combination of the three.
Religion is a protected class in the United States. It is not inborn, involuntary, immutable, not necessarily innocuous (according to Sprigg's very own employer) and not in the Constitution. The only mention of race, by the way, is the 15th Amendment regarding voting rights. It does not prevail insofar as service by public accommodations is concerned — Hence the Civil Rights Act of 1964. The definition of sexual orientation is quite simple and unambiguous. It is defined by the gender one is attracted to. The same, opposite, both or none. It does not vary by context. Sprigg concocts this gibberish to make an unsupported argument.

However, there is a much simpler explanation. Protected classes are defined by law. They are then equal under the law. If Phillips does prevail at the Supreme Court it is unlikely to be based on a religious objection. Doing so would overturn several precedents that have withstood numerous challenges. Rather, it is more likely to be based on compelled speech which relies on Phillips' self-serving proclamation that he is an artiste. Protected classes are irrelevant to compelled speech. Under that theory any artist could discriminate on any basis. The question then becomes: Who is an artist? A chef? The guy who makes an exquisite martini? A tailor? How about a hair stylist in a shop? Or a barber?

I admit that I am generally programmed to be a skeptical optimist. In other words I am quite capable of driving myself nuts. I just do not see how the Court could rule in Phillips' favor without eviscerating every civil rights law in this country which doesn't mean that they won't. I will just have to accept the fact that this case will add to my misery over the next six months.

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