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Deflating the anti-gay right's latest 'gotcha!'

by Jeremy Hooper

The anti-equality activists know that the civil rights narrative makes them look bad, which is why they've always tried to flip the script. Discriminating against loving same-sex couples became "protecting marriage" as a way to deny the obvious and make the proponents of marriage seem like the opponents. They framed their objections to things like hate crimes legislation and Don't Ask Don't Tell repeal as "pro-family" policies for the same reason. And of course now they are going around using the phrase "religious freedom" whenever they really mean to say "overextending our faith so that it can be used to discriminate against LGBT people in the public sector." This is what they do; it is their game.

To sell the game, they always find these "gotcha" situations that they spin into supposed backing for their framework. The latest involves customers who request bakeries bake up cakes with viciously anti-gay messages, with the idea being that those bakers who (almost always and rightly) deny the request are just as discriminatory as the bakers who have refused to bake wedding cakes for same-sex couples. Anti-equality activists like Heritage Foundation's Ryan T. Anderson are trying hard to push this spin:

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But of course Ryan and the American Family Association and everyone else who is trying to push this deceitful "gotcha" is wrong. Very wrong. Woefully wrong. Astoundingly wrong, in fact, for anyone who considers themselves great thinkers on these issues.

A request to make a cake with an anti-gay message is a question of product. Bakeries, like all businesses, are perfectly free to choose their product lineups. They are perfectly free to limit said product in a which that makes sense for their skill level, facilities, time management, or reasons for being in business. This is why a kosher baker cannot be compelled to make nonkosher foods, and organic bakery cannot be forced to make inorganic cakes, and so on. No customer has a right to come into a bakery that sells only cookies and demand a brownie.

The difference between an anti-gay person who requests and anti-gay cake and a same-sex couple who requests a wedding cake is glaringly obvious: the latter is simply seeking one of the offerings that the baker already purports to make, while the former is seeking a kind of cake that the baker has not made, does not make, and has no compulsion to make. When a same-sex couples comes into a bakery that is filled with sample wedding cakes, points to one on display, and says, "we want that one!" the couple is simply selecting something that the baker has made publicly known as a product that he or she has on offer. A customer who seeks an anti-gay (or anti-black or anti-woman or anti-Latino or anti-Christian...) confection is demanding a product that is not on offer.

And of course there's also the difference in viewpoint. An anti-gay (or anti-black or anti-woman or anti-Latino or anti-Christian...) cake is, indeed, pushing out a message that flies in the face of nondiscriminatory business practice. The comparable situation here would be if a gay couple went into a bakery and demanded a "God hates Christians" cake. Selling a gay couple the very same wedding cake that you would sell a straight couple is nothing of that kind (obviously). I know the anti-equality folks have convinced themselves that selling this very same cake to a same-sex couple constitutes some undue burden, constitutes "celebration" of the wedding, and is discrimination against their religious beliefs, but that is untenable logic. If that is going to be the logic that drives all future wedding cake sales, then these bakers are going to have to start holding pre-ceremony counseling sessions with all of their male/female couples to ensure that their weddings are "moral" enough to carry out the contract. I don't think that is the standard that they want, but it is the only standard that would be logically consistent.

Oh, and let's also not forget that the baker in question made it perfectly clear that she would make a blank Bible cake onto which the man could right the "God Hates Gays" message that she said he sought. That is a type of cake she makes. It's a noncontroversial cake that she apparently has the skill level to create. That is fair accommodation. Frankly, if a not-so-gay-friendly baker doesn't want to create a wedding cake that specifically speaks to the wedding being same-sex, that is something I'd likely support. Meaning that if this baker agreed to make a same-sex couple's cake but didn't want to write an inscription that wished the couple years of happiness or go out of their way to find a same-sex–specific cake topper, then that would not be that big of a deal. That goes back to product and what the baker chooses to offer. But that has not been the case that we have seen. What we have instead seen are bakers who say they will not make the very same kind of wedding cake for a same-sex couple that they would gladly make for an different-sex couple.

When my husband and I got married, we had a cake that specifically spoke to our wedding being two men:

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Our baker was thrilled at the chance to flex her creative muscle. She eagerly accepted the challenge and made an adorably delicious cake that made a statement.

But she didn't have to. Had she not had the skills, time, or even number of pans to make our cake, we would have understood. We chose her because we loved the taste of her cake and were open to a million different ideas. But we were not open to being turned away from her bakery—a bakery we chose after meeting with twenty or so others and greatly preferring the taste of hers—simply because we were a kind of couple whose sexual orientations rendered our money unusable. That would have been a different story altogether. That story is precisely the story we are seeking with all of the "fake victims" who the anti-equality movement keeps propping up as martyrs.

Bake us only the by-the-book cake that you show in your display case. Fine. But you cannot run a public accommodation that is perfectly happy to sell a wedding cake to Gene and Pat when they place an online order but refuses to complete the transaction when Gene and Pat, both male, come into the store to claim the purchase. That is called discrimination. And it will always be called discrimination no matter what novel phrases the anti-gay far-right dreams up to make their movement seem like something other than what it so clearly is.

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