Nicole Russell
Nicole Russell via The Federalist – Date unknown

One of The Federalist’s dimmer bulbs, Nicole Russell, is a confused Christian conservative. The title of Russell’s polemic on Monday is: “In Cakeshop Case, One Side Argues Sexual Behavior Is Akin To Race, The Other For Speech And Religious Freedoms.” Pretty idiotic and indicative of the facts that Russell doesn’t seem to have read the briefs and that she does not understand the case. She is also plaguing readers with the sophistry of begging the question.

We are quite accustomed to the bigotry of defining gay people by their sexual activity. It is a means of arguing that being gay amounts to a choice of sexual partners, discarding the notion of, and science associated with, sexual orientation. This particular hobby is most often pursued by Christian conservatives as a justification for discrimination. I will get back to this theme shortly but first —

The subtitle of this mess is:

The ACLU characterizes the core issue in Masterpiece as not free speech or the free exercise of religion, but discrimination comparable to racial division in the 1960s.

That is equally incorrect. Colorado, not the ACLU, identifies both race and sexual orientation as protected classes in the state’s nondiscrimination law. They are legal equals. Alliance Defending Freedom, the baker’s lawyers, claim that Colorado’s law is unconstitutional as applied. According to Russell:

Recently, the American Civil Liberties Union, which represents the plaintiffs in the case, hosted a media call making this astonishingly clear. The ACLU attorney, plaintiffs, several LGBTQ advocacy organizations, and Jim Obergefell of Obergefell v. Hodges fame all characterized the core issue in Masterpiece as not free speech or the free exercise of religion but discrimination comparable to racial division in the 1960s. It’s not only an inaccurate representation of the case, but an illogical legal argument operating under the guise of a disingenuous cultural soundbite.

The ACLU represents one of the respondents (not “plaintiffs”) in this case, Charlie Craig and David Mullins. The other respondent is the State of Colorado which has separate counsel.

ADF, lawyers for the petitioner, are responsible for creating the basis for the respondents’ response (they went first). ADF argues:

  1. That their client should have received a religious exemption to the law so that he is not required to provide goods and services that conflict with his religious beliefs and;
  2. That their client is an artist and that the state is forcing him to produce art. Doing so constitutes compelled speech which is prohibited by the First Amendment.

I did not listen to the media call. Neither did the justices of the Supreme Court. Based on their individual briefs the respondents counter that religious exemptions make any law wholly unenforceable. As Scalia wrote in Employment Division v. Smith accommodating everyone’s ideology would make each person a law unto themselves. They make a similar claim with respect to compelled speech arguing that just about anyone can say that they are an artist. In the alternative the application of nondiscrimination laws to public accommodations is settled law for over 50 years. This eliminates discretion and makes the law generally applicable. Meaning that those professionally and persistently persecuted Christians are not being targeted.

Russell describes the media call. You can read her take at the link above. She is obviously not an honest broker and her summary is based on her agenda (and selective hearing).

Sexual orientation does not exist

That brings me back to the claim voiced by religious conservatives to excuse or foster anti-LGBT discrimination. Russell writes:

Is refusing service for religious reasons like discriminating against a person because he is black? This seems to be the major public argument for the LGBT lobby in this case. It rests upon the idea that people’s sexual behavior is inborn, something they can’t change like the color of a person’s skin. This is a scientifically debatable premise. Oddly enough, it also contradicts the gender theory that LGBT organizations push on the public, which insists that every person’s gender and sexuality are fluid and thus subject to change.

Did I mention that Russell is profoundly confused? First of all, at the risk of repeating myself, the State of Colorado defines refusing service based on the customer’s race as the legal equal of refusing service based upon the customer’s sexual orientation. Justice Scalia (again) once opined that a tax on yarmulkes was a tax on Jews. Refusing to provide a cake to be consumed at a same-sex wedding is, thus, discrimination based upon sexual orientation. Who knew that the late Justice Scalia could be this useful in thwarting discrimination?

Russell provides two links within the quoted paragraph. The first is to one of those McHugh-Mayer posts that was not subjected to peer review for obvious reasons. It is an editorial published to a pretentious conservative Catholic blog. The second is to an intellectually void essay by Glenn Stanton. Stanton claims that lesbians have more teen pregnancies than heterosexuals which means that they are making a choice to be gay. Sorry Ms. Russell but sexual orientation being an organic characteristic is not “scientifically debatable.” The science is settled based on a mountain of peer-reviewed research.

At least she abstained from the generally required discussion of genetics from someone who wouldn’t know a chromosome from a crustacean.

That leaves us with, and I quote, “the gender theory that LGBT organizations push on the public, which insists that every person’s gender and sexuality are fluid and thus subject to change.” Did I mention that Russell is confused? The phrase “gender theory” has been primarily used by Pope Francis to confuse LGBT issues with the use of the word “theory.” Needless to say, the pope is not a scientist and lacks the skills and training to make these claims. Gravity is a theory.

Religious conservatives attempt to confuse issues of gender identity and sexual orientation by introducing fluidity into the discussion. Fluidity does exist but it changes neither sexual orientation nor gender identity. Those things generally remain the same. Personally, from time to time, I experience subtle shifts in my own sexuality which briefly cause me to be more bisexual. Nevertheless, I still identify as gay and I am most comfortable as a gay man. The occasional fluidity is uncomfortable for me.

More importantly, this has nothing to do with choice. Were that the case I would prefer the absence of the fluidity. Furthermore the overwhelming consensus of science is that our sexuality cannot be influenced externally. I like to say that fluidity is like outdoor temperature. It may fluctuate but there is nothing that anyone can do to influence those changes.

Zack Ford once tweeted something to the effect that there is nothing too awful for The Federalist to publish. New York Review of Books is a far more selective, and responsible, outlet. Therein, David Cole has a superb piece on this case that was published last month. Cole was National Legal Director of the ACLU. He is now the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University School of Law. As a matter of my opinion this summarizes, quite well, some of the arguments of the respondents in this case. It’s a good read and more representative than Ms. Russel’s confused rendering of a conference call.

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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.