Is It Just a Cake?
History helps us understand what is at stake in the Masterpiece Cakeshop case
In his regular column yesterday, David Brooks proposed that citizens don’t need lawyers to adjudicate the culture wars that began back in the 1970s. Instead of litigating, Brooks asked, why not talk? Anticipating arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission made later that day at the Supreme Court, Brooks wrote that the baker in question, Jack Phillips “is not trying to restrict gay marriage or gay rights; he’s simply asking not to be forced to take part.” The litigants, Charlie Craig and David Mullins, might — instead of choosing to sue — have been “neighborly” instead. They might have embraced Phillips, invited him to their home, and persuaded him that gay people are really no different from straight people. Furthermore, Brooks argued,
It’s just a cake. It’s not like they were being denied a home or a job, or a wedding. A cake looks good in magazines, but it’s not an important thing in a marriage. Second, Phillips’s opinion is not a strange opinion. Barack Obama was elected president arguing that a marriage was between a man and a woman. Most good-hearted Americans believed this until a few years ago. Third, the tide of opinion is quickly swinging in favor of gay marriage. Its advocates have every cause to feel confident, patient and secure.
Given that context, the neighborly approach would be to say: “Fine, we won’t compel you to do something you believe violates your sacred principles. But we would like to hire you to bake other cakes for us. We would like to invite you into our home for dinner and bake with you, so you can see our marital love, and so we can understand your values. You still may not agree with us, after all this, but at least we’ll understand each other better and we can live more fully in our community.”
But noooooooooOOOO! as John Belushi used to say back in the day. Instead, Craig and Mullins chose to “take the problem out of the neighborhood and throw it into the court system.
Initially I was deeply annoyed by this column: I have never seen an article that suggested that a critical issue that charts the moral divisions in this country like, say, abortion, doesn’t belong in the courts. And Brooks seems profoundly unaware of the sediment of homophobic prejudice that causes people to lose their temper over a wedding cake: trying to make your way through the halls of a public school without being bullied for your dykedom or faggotry; the endless slights that do not end with adulthood (contrary to popular belief, it does — and does not — actually get better); the economic penalties that many of us paid for years when our relationships went unrecognized by our employers; or the friends who lost everything they owned, and often their homes, when a beloved partner’s family swooped in after death. This is just where our bitterness as LGBT people can begin.
So let me be clear: it’s not just a cake. And why was it incumbent on, or even practical for, the litigants to host someone in their home (actually or metaphorically) and wheedle him into altering his religious beliefs?
Yet it is also just a cake, and part of me feels very sorry for Jack Phillips, who now has to endure taunts in the national press that his cakes — of which he is proud, and may actually consider art — are just dumb old cakes and not deserving of anyone’s respect. Part of me wants to ask: if Craig and Mullins didn’t really think that Phillips’ cakes were art, why was his cake — and only his cake — what they needed for their wedding?
That said, Brooks also misses the history at stake, some of which is contained in the arguments presented before the court yesterday: that major shifts in civil rights law, ones that extend Constitutional protection to groups previously unseen or unrecognized, tend to be accompanied by litigation designed to limit the practical application of major court decisions. On Monday, the Court declined to hear a case that has done just that, allowing a Texas Supreme Court ruling that allows municipalities to deny marital benefits to same-sex couples to stand.
It’s really not just a cake. And there is more at stake than respecting the religious beliefs of individuals.
What cases like this should remind us is that expansions of civil rights in the United States have always represented clashes of moral values that end up in the courts because they are deeply attached to, and the leading edge of, powerful political interests. And, like everything else, Masterpiece Cakeshop has a history. One key moment in that history was after the 1980 election, when religious constituencies, primarily Catholics and evangelical Protestants, proved to conservatives in the Republican Party that they could help deliver an election.
But they wanted something in return: a voice in national policy. Because of this, conservatives activists like Richard Viguerie, Paul Weyrich, and Howard Phillips pressed the new president, Ronald Reagan, hard to act on their coalition’s key moral issues. A moral strategy, senior White House policy advisor Morton Blackwell argued in the spring of 1981, could also be a political strategy, one that made the Administration’s dance to attract identity groups, and liberals in their own party, through compromises unnecessary. Instead of targeting voters by age, race or gender, why not address them through communities of shared moral values that enhanced the administration’s link to religious conservatives?*
In September 1981, Connecticut Mutual Life Insurance did a study of what it called “The Impact of Belief” on American values. That December, Blackwell noted in a memo to West Wing policy advisors that the study “contains…important implications for holding together President Reagan’s Winning Coalition.” Religious and moral beliefs, he argued, were the principle factor that “consistently and dramatically affects the values and behaviors of Americans.” Why would they not affect voting behavior too? Religious people, Blackwell pointed out, represented a huge voting block. The 45 million Americans that the report classified as “intensely religious” were also “more likely to vote often and become highly involved in their local communities. More than twice that number identified as merely “religious,” but were, in Blackwell’s judgment, “therefore susceptible to a call to increased religious commitment and morality,” and hence, greater political activism.
Thus, the Republican Party invested, not in bridging communities with different values, but in consolidating those differences and diluting the effectiveness of traditional interest groups. Acknowledging that there is a liberal tendency towards shutting down these conversations in defense of new rights, accompanied by litigation that argues against making exceptions for individuals’ privately held moral views, has to be understood in this larger historical context.
Blackwell, Viguerie, Weyrich and Phillips saw in the 1980 election a map for future conservative domination of the political landscape, not shared governance with liberals. The Connecticut Mutual report anticipated that Americans would become even more religious in the years to come, meaning that faith was “becoming `a more powerful factor in American life than whether someone is liberal or conservative, male or female, young or old, Black or White.’” Cultivating religious Americans through policies that appealed to morality meant that the Administration could, simultaneously, target its policies to a group of Americans who were more likely to vote than any other group. According to Connecticut Mutual, 77% of the most religious Americans voted as opposed to 49% of the least religious. A group of voters who were 32% more likely to come to meetings and 29% more likely to volunteer, 33% were also more likely “to consider homosexuality morally wrong, and 35% more likely to value family activities. “When we consider that only half of the registered voters participated in the recent Presidential election,” Blackwell concluded, policy proposals that brought religious voters to the polls were more than likely to help the President and other GOP candidates.
The study also anticipates a crucial theme in the Masterpiece case: that the litigants are elite, liberal professionals deploying their privilege to force a working class small business owner to do their bidding, even if it bankrupts him. As Blackwell wrote in 1981, following the Connecticut Mutual report, there was a “moral gap” between “elites – such as business, government, the news media, education, science and the general public.” Elites were “much less inclined to feel” that abortion, homosexuality, and marijuana were wrong; they were also “less likely to feel God loves them.” Blackwell’s deductive conclusion was that to cultivate religious leaders was, in a sense, to cultivate “the general public….This report demonstrates that moral issued have become the leading political issues. These results suggest that President Reagan may not have been elected for his known and admired qualities, but rather, because he was successful in sounding a call to faith in traditional American values.”
The implications for a winning coalition were clear. The public wanted morality at the center of political life. Organizations like the Moral Majority were “part of a more profound cultural shift, rather than an organized special interest trying to convert society to their own belief system.” Religious leaders, Blackwell predicted, would be the voice of the 1980s, and the President could strengthen his position within the GOP and expand Republican dominance over politics “by acting on such moral/social issues as right-to-life. Failing to act might be politically unwise.”
I pointed out above that the desire to sue people like Jack Phillips has historical weight, both for communities and individuals, a weight that carries burdens of shame and discrimination that are not instantly erased when new right are granted. But it’s also worth pointing out that the desire to draw a line in the sand at a small bakery in Colorado has a history too.
Because you never really believed it was all about the cake, did you?
*All quotations in this document are drawn from a memorandum written to Elizabeth Dole, Director of the Office of Public Liaison in the Reagan administration, by Morton C. Blackwell, on December 2 1981: it can be retrieved from Religion, box OA4537 EDF, Ronald Reagan Presidential Library.
Claire Potter is professor of history at The New School, and Executive Editor of Public Seminar. You can follow her on Twitter.