This poseur calls himself a cake artist

The Supreme Court has not received a number of well reasoned briefs in support of the Colorado Civil Rights Commission (Masterpiece Cakeshop v. Colorado CRC). One of the things that I have overlooked is that the compelled speech argument made by the religious fundamentalists doesn’t really work because of the lack of a government sponsored message.

This is a First Amendment case. There are two issues. The first is whether or not being required to provide a wedding cake for a gay couple is compelled speech which is dependent upon whether or not the cake is a work of art as art is understood in legal terms. The second is whether Colorado’s nondiscrimination law infringes on the baker’s right to free exercise of religion. The best legal arguments, in my opinion, are those that are concise and targeted.

Lambda Legal’s amicus brief is seemingly not one of those. It reads as if Lambda intentionally created a companion to the more targeted legal arguments. Lambda describes at length some of the discrimination that LGBT people encounter on a daily basis, even in progressive states like New York and California. In that regard it is required reading. It is also very sad that in the 21st century, as they describe:

Across America, LGBT people are subjected to
pervasive discrimination. This discrimination often
blindsides its targets, hitting without warning
the myriad transactions that make up daily life. As a
result, many LGBT people live defensively, always on
guard against the next humiliating, ostracizing
incident. From casual shaming to harassment to
outright refusals of service, the treatment visited
upon this minority effectively subordinates
to others’
their freedom to live with equal dignity.

or not couched as religion
speech, discrimination against LGBT people inflicts
immediate and lasting harm. This is true regardless
of whether there are alternative accommodations
possibly available. In the aftermath
of discrimination,
victims often must redirect their energy from the
completion of ordinary daily tasks
what should be
joyful, celebratory planning
for a significant life
—to recovery mode, focusing instead on
the painful fall-out
of the discrimination.
Residual effects can include psychological and
physical health problems, as well as difficulties due to
delay or lack of appropriate alternatives.

Lambda goes on to cite a number of instances. These are stories that have never been made public before. For example:

J.M., an Alabama resident, faced discrimination
by a health care provider that took the form of
invasive, anti-gay proselytizing:

When my partner was a hospital
patient, he told the treating physician
he was gay on the first day of his
responded, “I’m sorry for that.” During
a subsequent hospitalization, he was
treated by the same physician. During
that stay an uninvited guest showed up
to the room to pray over my partner,
and the following day the physician left
a pamphlet on my partner’s tray that
said you must “repent and be filled
with the spirit or you will go to hell.”
The physician continued to question
my partner about his religion.

Or degradation in Chicago:

L.M., an African American gay journalist, was
reviewing a Chicago hotel for a magazine for LGBT
people of color. As he approached the front desk, he
“heard an older African American male employee
saying ‘fag,’ ‘fucking homo,’ and ‘he needs to find
another hotel because he ain’t staying here’ to his co-
worker.” L.M. Statement. As he explained, L.M. felt
deeply humiliated:

It wasn’t whispered but blatantly
directed towards to me. … When it was
my turn [at] … the front desk, … I
confronted him about those nasty
comments and he didn’t deny them.
The folks behind just continued to
laugh … Never have I felt so powerless
and vulnerable. That day stole a part of
me. … I began to lose my confidence,
self-worth and felt invisible to the
world. I shall never forget his face and
the sea of laughter from his audience.

Other examples of discrimination further
reinforce the diversity of settings in which same-sex
couples and their families are vulnerable. Consider
the series of rejections visited upon A.S. and R.S., a
married couple living outside Nashville, Tennessee.
When A.S. became pregnant, she wanted to deliver at
home with a midwife due to her medical history. They
investigated and made initial calls. But then,

excitement quickly turned to doubt,
embarrassment, and sadness when the
first midwife turned us down …
[saying] her midwifery practice was a
part of her ministry and therefore she
was not comfortable working with a
same-sex couple. While I had
experienced similar situations when
we were planning our wedding, this felt
more profound … it was now affecting
our child. As we … were turned down
by every midwife for the same reason, I
felt utterly powerless and began to
wonder if we would be able to find a
qualified provider at all. My access to
quality medical care, and that of our
unborn child, was greatly reduced
because of who I love. Our son was
discriminated against before he was
ever born.

There is much more. I encourage you to read the brief in full. I just noticed an email from Brian S. Brown titled: “NOM v Lambda Legal.” National Organization for Marriage has found another idiotic reason to ask for money. This has absolutely nothing to do with them.

If I feel up to it I might write about Brown’s email tomorrow.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.