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7 Key Takeaways From ACLU Spin On Their Masterpiece Cakeshop Loss


The deceptively named American Civil Liberties Union fought to the Supreme Court to force Colorado baker Jack Phillips to participate in a homosexual celebration or face bankrupting fines and state surveillance of his religious observance and speech. In the wake of Monday’s Masterpiece Cakeshop decision against their clients, Charlie Craig and David Mullins, the ACLU sought to keep influencing the public narrative to keep pressure on the Supreme Court and lower courts for future cases.

Nearly all Americans oppose rude and worse behavior towards gay people, and we should. Yet many also do not like the idea of bankrupting a small business because big money exploited two men’s hurt feelings to push an authoritarian, socially transformative agenda. So let’s consider whether the ACLU’s messaging is true or false, and what purposes deception might serve.

1. The ACLU Smears Phillips As Anti-Gay, But That’s False

Even though Phillips has repeatedly said publicly and in court that he would be happy to serve Craig and Mullins in any way except celebrating their sexuality, the ACLU keeps saying the pair “were refused service at a Colorado bakery because they are a same-sex couple.”

If that were true, Phillips would not be happy to sell them anything he makes except one category of custom item. Phillips says he would also be happy to make a custom cake for a same-sex-attracted man and a woman’s wedding to each other (that sounds weird but is actually common). So this and all the other similar court cases are not about the gay couple being gay, because these artists are perfectly happy to serve gay people.

It’s about this gay couple demanding that Phillips celebrate their sexuality, an act he believes would displease God. Phillips merely is saying his conscience is not for sale. Either the ACLU is lying about this core issue, or this high-status group of lawyers and comms people really cannot sort ideas precisely. Either option is troubling, especially given how bad-faith it is and high-stakes it ought to be to call someone a bigot unless you can prove something that terrible is true.

2. LGBT Lobby Prefers Smears to Good-Faith Engagement

So why would the ACLU prefer to smear Phillips rather than deal with the substance of his arguments, both in courts of law and of public opinion? Perhaps this is an implicit admission that their case rests on projected and subjective ill feeling rather than objective reality. It’s a dangerous thing to attach large penalties to how offended someone gets at your life choices.

This is a case about how we want to weigh the constitutionally guaranteed free exercise of religion against the non-secured, tyrannical desire of some people to force others to act as if same-sex behavior defines a person’s being and has absolutely zero drawbacks or social tradeoffs. Americans certainly have more nuanced beliefs on such questions than the question framing on which they are generally polled: whether it’s okay for a business to refuse to serve gay people “for being gay.”

If ACLU and allies engage with the actual substance of the dispute, however, they have a much harder public argument. This is probably why publicist Lauren Diamond, from the PR firm Berlin Rosen, sent around talking points to press lists soon after the decision Monday, recommending that media smear Phillip’s public interest law firm, Alliance Defending Freedom, rather than accurately report its stance.

“It’s critical that ADF’s real agenda – eroding the rights of LGBT people – is at the forefront of any coverage about today’s ruling,” she wrote. At least one organization’s business model involves monetizing baseless defamation against ADF and other groups. Lying makes the Southern Poverty Law Center so many millions they can afford lots of PR contracts to keep the smears spreading.

Smearing people is indeed critical for pushing a political agenda designed to shut their ideas out of public discourse and profit from ruining people’s reputations. Tactics like these, however, should deeply wound the credibility of those who use them, and make people less likely to trust the other things they say — like “this case is about ‘a license to discriminate against gay people.'”

3. ‘Discrimination’ and ‘Bigotry’ Are Now Weasel Words

It cannot be that the ACLU is against all cases of “discrimination” in businesses open to the public, or they would be fighting to force businesses to accept barefooted and shirtless people. Yet the organization’s employees and allies incessantly repeat “discrimination” as a pejorative throughout what they portray as arguments, without ever explaining why we should consider this kind of discrimination the bad kind.

In discussing the decision with reporters, the ACLU lawyer on the Masterpiece case, James Esseks, characterized what ADF sought as “a license to discriminate under the constitution based on who their customers were.” Several times during the press call, he used the bumper-sticker phrase “a constitutional right to discriminate” to characterize the opposition.

He appears to want people to recoil at the mere concept of making distinctions between two things, but all sane people agree that some discrimination is good while other kinds are not. For example, Roseanne Barr was properly “discriminated against” for publicly hurling a racial slur. In firing her, her employer exercised justifiable discrimination against people who do such things. So the real question at issue in these cake cases is what sort of discrimination society should condone and which it should condemn.

Our society has answered the question of whether it’s acceptable to discriminate based on race, and we did so in blood. We have not yet truly decided whether it’s acceptable to discriminate between men and women in sexual practices and sex-related law. Regardless, Big LGBT seeks to herd everyone preemptively into their desired social structure without the opportunity for informed and broad consent. Not only is that not fair, it endangers their cause. It both risks backlash and implies their cause has something to hide.

Perhaps they think Americans won’t really be on board with their program if we get to see what it is first. Since it involves things like denying abandoned children loving foster homes, that’s probably a reasonable expectation. All the more reason to make sure we get a good look.

4. The Jury Is Out On Analogizing Gay Sex to Race

The ACLU and its allies compare Jack’s beliefs with racial bigotry. They and several Supreme Court justices explored this comparison directly during oral arguments. They are trying to take Americans’ shame and desire to make things right over slavery and Jim Crow and pull it like a blanket over sexuality as well as race.

That is another major argument to have, and many African-Americans find it objectionable if not even offensive, but swiftly sliding the comparison across the table before we all get a good look prevents us from examining it carefully. As I established above, Jack’s objection is to the nature of the event the ACLU sought to force him to participate in, not the identity of the participants. So the comparison to racism doesn’t work there.

It also doesn’t work on the substance of Jack’s beliefs about marriage. There is no such thing as a “black wedding” or a “white wedding.” Those are just weddings. Weddings are not a thing white people do or black people do, they are a thing all people of all times, nationalities, and tribes have done.

Not so demanding that people think an exclusive sexual lifelong relationship between a man and a woman is the same thing as a similar relationship between a man and a man or a woman and a woman. Actually, no society until about the past 50 years has ever tried to say that everyone must be forced into acknowledging that a woman and man are identical, even interchangeable sex partners, since everyone has always considered men and women as very obviously different. Even when ancient Athens and Sparta and others tolerated widespread homosexual relationships, their societies never called it marriage.

The point being, there is indeed a distinction between sex and race. People of different colors and shapes and ethnicities all make children in exactly the same way. There can be no distinction here but in a prejudiced way, in a way that creates a distinction where there really isn’t one. Yet there is really a natural and obvious distinction between having sex with a man and having sex with a woman. Not to put too fine a point on it, but completely different body parts are involved.

Also — and this is extremely important to law and society broadly, because family law and childrearing are major components of any civilization — one type of sex can produce babies, and one type cannot. That is a natural distinction point in a way that race is not. Race and sexuality are not the same, or even analogous.

5. Comparing Support for Natural Marriage to Racism Is an Outrageous Slur

Racism is despised in our society, and should be. People who display racist views are hounded out of jobs, relationships, social media, and more. Recall, for example, the Twitter troll who exhibited anti-Muslim bigotry and was recently outed by HuffPost, then consequently shunned even by her own family. To call someone a racist is a serious charge, because it is a serious moral wrong.

Given that, it is a slur to compare deeply considered Christian, Jewish, and Muslim teachings about natural marriage to racism. In its decision requiring all states to give gay couples marriage licenses, the Supreme Court called religious teachings about the sanctity of man-woman marriage “decent and honorable.” In its Masterpiece decision Monday, the court said “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression,” and that it is “inappropriate” for governments to compare these religious teachings to racism.

Yet the ACLU and the LGBT lobby make this comparison constantly, displaying as little regard for people who think differently as they claim such folks have about gay people.

“Nobody can say we won’t sell X, Y, and Z to gay people, to women, to Latinos, to Muslims, or anybody else,” ACLU lawyer Esseks told media, characterizing his opponents’ arguments. This is not only untrue and bad faith, it is a religious slur. He needs to refrain from that or risk suggesting that his arguments really mean “I want legal protections for gay people that I oppose granting equally to religious people and every other American.”

6. The ACLU Is Making Wild Claims About What’s At Stake…

Esseks and LGBT media characterize issues like those at play in Masterpiece Cakeshop as about “human rights” and “dignity.” Human rights and human dignity are indeed important things. So important that we should apply them precisely so they remain robust concepts.

Let’s be clear here. Seventy percent of Americans think society should accept homosexuality, 89 percent of Americans think gay people should have equal job opportunities, and anti-LGBT violence is extremely rare. American LGBT people are extremely safe and have secure economic prospects. Yes, there are some mean and prejudiced people out there, but largely Americans just want their fellow citizens to be happy. There is no avalanche of anti-gay bigotry just waiting to be unleashed if the Supreme Court lets religious people live in harmony with their most important convictions.

To call that a hardship or to say it threatens someone’s human dignity is, frankly, wildly out of touch with reality.

Now for the Masterpiece case. What’s actually at stake? A handful of gay couples having to buy a wedding product from the second small business owner they consult. That is it. To resolve the Masterpiece case without hauling people to the Supreme Court, the gay couple could literally have simply purchased ready-made items from the same shop or taken their business to one of dozens of other easily accessible artists for hire.

To call that a hardship or to say it threatens someone’s human dignity is, frankly, wildly out of touch with reality. (Just ask anyone who has ever planned any wedding about securing vendors.) If one’s entire identity is called into question by someone saying “I really, really wish I could, and I am so happy to serve you in any other way, but I simply can’t do this one thing,” it says more about the fragility of the party who takes that $100 matter to the freaking Supreme Court than it does the fabricated bigotry of the person they’re suing.

Perhaps to cover for this extremely embarrassing lack of perspective, Esseks told media the Masterpiece case was part of “an intentional campaign of people using claims of free speech to undermine protections for LGBT people, women, and others. This piece is part of that campaign. This case was about cakes, but the overall dispute is about access to health care, education, employment… a hospital saying we will not give you care we give anyone else because of who you are.”

No. It’s not. No hospital will not save a person’s life because he’s LGBT. No public school will fire a gay teacher for being gay. We don’t live in Iran. We live in America, where firemen don’t ask a person what kind of sex he has before hauling the dude out of a burning building, and EMTs don’t ask a person if they’re undocumented before sticking in an IV and billing taxpayers. To imply they might is so silly that a person who makes claims like that ought to be laughed at and ignored as, again, completely non-credible and common-sense impaired.

7. …While Hiding The Real Threat, Which Is Indeed Massive

LGBT people already have intrinsic worth and dignity simply because they are humans. No government can give them dignity or take it away, because their dignity doesn’t come from government. It comes from God. This is what Christians believe.

This belief is the source of the United States’ natural rights-based legal system. That is why freedom of religion is our first freedom. If we don’t have it, we have no basis — legally or rationally — for a free society. Without a creator who fashioned each person in his divine image and endured torture, death, and resurrection to erase every bad thing every person has ever done so he can love them infinitely, there is no philosophical basis for human equality or dignity. If we no longer believe in the self-evident truth “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” LGBT activists will find they have unleashed a far greater foe than a handful of Christian cake-bakers who might threaten their access to culinary confections for about 15 minutes.

That foe is the unlimited state, a government so big and so strong that it will tell people what they must believe in the sacred place of their private conscience. A government big enough to give you whatever you think you want from other people is big enough to take away everything you think you have. The power you amass to use against others can just as easily be turned back against you.

Thus, governments allowed unlimited powers have universally turned out to be mass murderers on a inconceivable scale. They offer equality, alright: equality of totalitarian power, applied evenly to those of all varieties of sexual activity. I wish this were exaggeration, but it is not. Take care.