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Neil Gorsuch’s Question Is Key To Unlocking The Upcoming Masterpiece Cakeshop Decision


The Supreme Court’s decision on Jack Phillips and his Masterpiece Cakeshop is expected in the next two to three weeks. While the outcome could surprise us all, the result both sides of the political spectrum predict is a substantial win for the Left packaged as a favorable verdict for the Right. That is, the court will rule “for” Phillips but against his cause.

The reason is pretty simple: Justice Anthony Kennedy is the swing vote, and in the oral arguments last December, his mind seemed made up. Kennedy knows that if Phillips’ speech as a cake artist is protected, then the speech of creative designers of every kind in the wedding industry must also be protected.

“It means there’s basically an ability to boycott gay marriages,” Kennedy said, an outcome he made clear was not acceptable. “The problem for you,” Kennedy explained to Phillips’ attorneys, “is that so many of these examples—and a photographer can be included—do involve speech.” Protecting such speech would be “an affront to the gay community,” which Kennedy thinks is concerning, perhaps illegal.

At the same time, Kennedy is likely sensitive to the fact that Phillips has won his case in the courts of popular opinion, by a two-thirds majority. In the December oral arguments, Kennedy appeared to be exploring a clever legal loophole to escape this dilemma. Most likely, he will write a narrow fact-based decision that will leave the judicial framework that prosecuted Phillips in place, but excuse the baker personally from any further punishment, on the notion that some of the judges involved in Phillips’ case were biased against religion.

Such an opinion would tend to leave folks like Phillips guilty by implication without forcing the court to explain, head-on, why Christian bakers are obligated to design cakes for same-sex weddings.

Does Sexual Orientation Really Compare to Race?

But obligated they would be, and the reason, whether SCOTUS records it or not, ought to be publicly examined. It begins with the following question: If Phillips’ First Amendment rights allow him to break Colorado anti-discrimination law with respect to sexual orientation, then why couldn’t somebody else do so with respect to race?

This question has dominated media arguments against Phillips, and was the issue for liberal justices during oral arguments. Justice Sonia Sotomayor harped on Newman v. Piggie, Justice Stephen Breyer brought up Ollie’s Barbecue, and Justice Elena Kagan asked point-blank: “Same case or not the same case, if [Phillips] instead objected to interracial marriage?”

Of course, Phillips’s attorney replied that was “a very different case” because the “objection would be based on who the person is, rather than what the message is.” “Mr. Phillips,” she explained, “is looking at not the ‘who’ but the ‘what’ in these instances.” To which Justice Neil Gorsuch replied, in arguably the most important question of the entire case:

Well, actually, counsel, that seems to be a point of contention. The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?

You see, in the Supreme Court, neither the Left nor the Right believes that religious freedom trumps anti-discrimination law. Neither claims practicing homosexuals are just automatically entitled to any service they happen to demand. The law forbids just one thing: discrimination on account of sexual orientation (or race, religion, etc.). The objection must be “to the person,” as Gorsuch pointed out: “that’s when the discrimination law kicks in.”

The footnote Gorsuch mentioned is a great illustration of this. Several Colorado bakeries turned down orders from a Christian for a Bible-shaped cake with Leviticus 18:22 on it. They were not guilty of discrimination because their refusal was based on the message the Christian wanted his cake to convey, not the simple fact that he happened to be a Christian. Le Bakery Sensual had no problem serving Christians in general, and in fact would have been willing to make that Christian pretty much any cake but the “traditional marriage celebration cake” he ordered.

This is common sense, and courts have been quite capable of using it regarding Christians as a protected class. The problem is that the lower courts haven’t been willing to apply this common sense to homosexual anti-discrimination cases.

Instead, as I have noted previously, they decided that when it comes to homosexuality, anti-discrimination law automatically covers any activities “engaged in exclusively or predominately” by members of the protected class. For religion, this is not true. For sex, the idea was rejected. For race, maybe. But for homosexuality, doing is being, and being is a sacred right.

Anti-Discrimination Law Protects Being, Not Doing

Behind Gorsuch’s question lies the understanding that this conclusion ought not be taken for granted. Anti-discrimination law is designed to protect being, not doing, and it isn’t fair to arbitrarily decide for one class that their particular doings are all beings. Nobody has a right to a Leviticus 18:22 cake for his traditional marriage gala even if such celebrations are engaged in “exclusively or predominately” by some brand of Christian.

In the same way, nobody has a right to a wedding cake topped with two men kissing, even if only “gay people” would want such a cake.  Unless, of course, it really is true that for “gay people” doing is being.

You see, Christians like Phillips think it is natural to distinguish between the act of “sodomy” and the propensity called sexual orientation. They condemn the act but do not hate or discriminate against those who happen to be tempted to commit it.

When I first started following Phillips’ case, I sent a simple question to his legal team: Many people with persistent same-sex attraction choose to marry a member of the opposite sex. Would Phillips be willing to make a cake for a man and a woman who wanted to marry each other even though they revealed to him that they were both gay? Their immediate and unequivocal  response was “Yes – Jack would do the proposed cake.”

This was no surprise. After all, Christians see homosexuality as on a par with your average sexual impulse, no different from a desire to have a one-night stand instead of going home to your wife. Sure, you might have these desires without looking for them, but they don’t define your essence or lay out a blueprint for the “natural” use of your sexuality. They’re just part of the smorgasbord of impulses that we all have to sift in order to choose what is right.

SCOTUS Liberals Think Doing Is Being

But the liberal wing of SCOTUS, which has dominated this issue 5-4 for decades now, does not view homosexuality as comparable to other sexual impulses. Instead, they have argued that homosexuality is to romance what race is to skin-tone: an inborn biological type.

From this point of view, doing really is being, for, as Kennedy puts it in Obergefell v. Hodges, homosexual’s “immutable nature dictates that same-sex marriage is their only real path” to profound romantic commitment. Phillips’ offer of a heterosexual wedding cake to homosexuals is thus an empty one, because no one with a history of exclusive same-sex attraction could want such a cake.

But is the liberal view on the issue factual? Is homosexuality an immutable condition written in one’s DNA? Or is it really just part of the vast spectrum of human desire properly governed by moral precept and choice?

The Research Solidly Finds Sexual Orientation Malleable

Many may be inclined to say that this is a matter of opinion, and that the leftist view on the court is as scientific as the view on the Right. Most liberal judges might agree, since they assume immutability of sexual orientation without bothering to state or defend it. Kennedy, an exception to this rule, cited an American Psychological Association (APA) brief which, though it contains much information designed to support redefining marriage, does not assert that sexual orientation is immutable.

There is conclusive scientific evidence that most people who experience exclusive same-sex attraction end up developing an interest in the opposite sex over time.

The reason is very simple. There is not only no scientific evidence that sexual orientation is immutable, there is conclusive scientific evidence that most people who experience exclusive same-sex attraction end up developing an interest in the opposite sex over time. The stats on this have been printed out in tables and discussed matter-of-factly in the technical journals for decades, but they have a curious way of never quite making it out of the Archives of Sexual Behavior into CNN’s evening news.

Consider what researchers found in 2007 when they examined a representative sample of more than 10,000 American youth, following each individual from the age of 16 to 22. Rather than rely on an individual’s reconstruction of his or her past based on current identity, researchers met with people three times throughout the six-year period. The first time, when subjects were 16, researchers asked subjects whether they had ever been romantically attracted to a member of the opposite or same sex. In each successive interview, they were asked about their romantic attractions since last interview.

For instance, 17-year-old males were asked if, in the past year, they had a romantic attraction to another male or female. About 1.5 percent reported only having a romantic attraction to other males. Five years later, when that 1.5 percent of young men were asked about their romantic attractions since the last interview, the overwhelming majority of them (70 percent) reported a 180-degree flip in their sexual orientation—they only had romantic feelings for women.

Similarly, among females, about 40 percent switched from exclusive same-sex attraction (SSA) to exclusive opposite-sex attraction (OSA). Most of the rest (45 percent of total) reported that they had feelings for both men and women. Only 1 percent of women who at 17 reported a full year of exclusive same-sex attraction reported a similar experience in the five years that followed.

Leftist Judges Assume What the Evidence Shows Is False

Leftist judges have based their legal analyses on the assumption that if an 17ma-year-old woman has exclusive SSA, some form of same-sex commitment is her only path to “marriage” because her condition is immutable. But her “condition” has only a 1 percent chance of lasting five years!

On the same factually uninformed assumption, courts argue that businesses that refuse service to such a 17-year-old’s same-sex marriage (you can marry as young as 16 in most states) are discriminating against her for a condition analogous to race. The courts are ready to punish Christian businesses—fine them, re-educate them, and close them down.

Yet there is no question, on the facts, that exclusive same-sex sexual orientation (unlike heterosexual sexual orientation) is extremely unstable, especially among young people. According to hard numbers, by the time the courts are done reeducating a Christian business on a male plaintiff’s immutable homosexuality, he’s probably going to not only be having heterosexual feelings (about a 80 percent chance), but having sex with his girlfriend or wife (about a 50 percent chance).

It’s Not Just Young People, Either

Now, one might argue that this extraordinary instability of sexual orientation is only true for young people. This is a weak objection, since the courts’ ruling must apply to people at least as young as 16. Besides, an immutable characteristic does not fluctuate wildly in early adulthood: “Oh, at 17 I was white; by the time I was 22, definitely black, now quite settled into brown.”

‘Being homosexual’ is rather like ‘being Democrat’ or ‘being Hindu.’

But such objections can also be answered by empirical data on older populations. While no study I am aware of can come close to the Cornell-led study cited above for rigor and sample-size, the data that exists on older populations excludes the possibility that sexual orientation is truly immutable. A 2011 study, for instance, found that a little under 30 percent of those who identified as homosexuals at 40 identified as bisexual or heterosexual by the time they were 50.

Such a high rate of change in self-identification at such a late stage in life indicates that exclusive homosexuality barely enjoys the stability one finds in clearly mutable preferences like religious identification or party affiliation. “Being homosexual” is rather like “being Democrat” or “being Hindu.” The probability of change before your mid-twenties can be quite high. The probability of change in later adulthood is around 40 percent.

Overall, roughly half of those who have identified as homosexuals in the past no longer do, and roughly half of those who currently identify as homosexual used to identify as something else. This rule of thumb (noted, in part or in whole by multiple scholars) indicates homosexuality is about as stable as religion: roughly half of Americans have changed religions at least once.

Doing Is Therefore Not Being

So, on what basis do the courts claim that homosexuality is inborn and “immutable” so that, for homosexuals, doing is being? The only evidence which, to my knowledge, they have brought to bear on the issue is the APA’s vague statement that homosexuality is “highly resistant to change.” The best evidence the APA could muster for this idea was their conclusion that so-called “conversion” therapies—as practiced primarily by a dying breed of Freudian psychologists and a handful of self-appointed counselors—are “unlikely to succeed.”

Homosexual behaviors, including same-sex marriage, are no more inborn or immutable than Hindu veganism.

In point of fact, “conversion therapy” despite its sometimes bizarre methods, tends to enjoy “success” rates similar to other “kick-your-addictions” or “heal-your-sex-life” programs: maybe 15 percent. For comparison, Alcoholics Anonymous has a “success” rate between 5 and 10 percent. The low rate of success such groups enjoy does not by any means prove that homosexuality (or alcoholism, for that matter) is an immutable characteristic. The stats on that question are directly and easily accessible: homosexuality is hardly more immutable than religion or political party.

This brings us back to Gorsuch’s all-important question. Is Phillips’ refusal to make a ‘gay’ wedding cake actually a sly way of discriminating against people with same-sex attraction? The answer is no, in much the same way that Le Bakery Sensual’s refusal to make a traditional marriage celebration cake was not a sly way of discriminating against Christians.

Homosexual behaviors, including same-sex marriage, are no more inborn or immutable than Hindu veganism or Christian abstinence from “sodomy.” A refusal to make two homosexuals a cake for a gay wedding, when paired, as Phillips’ refusal was, with an offer to serve them in any other way, is not some sly strike at an individual for his identity. It is a good-faith objection to a practice, a doing which, as Gorsuch so aptly pointed out, is quite appropriately not the object of laws to protect being.