One of the several cases involving a business refusing to make a cake for a same-sex wedding has reached the U.S. Supreme Court. The baker, Jack Phillips considers himself to be a “cake artist,” and believes that being required to make a cake for a gay couple is an infringement on his right of free expression. Of course, the Trump administration is taking his side. But in defending Phillips, Trump’s Solicitor General Noel Francisco made an argument that was not only bizarre, it showed that Francisco has no understanding of what American civil rights laws are all about.
According to Imani Gandy, writing at Rewire, Francisco kept referring to the Ku Klux Klan while arguing that Phillips should not be forced to bake a cake for, and thereby “support” a gay wedding. Gandy says:
He [Francisco] repeatedly said the logic behind the couple’s claims—”If you run a business, you can’t refuse to serve gay people” or, alternatively, “Just make us a goddamn cake already”—would be akin to compelling a Black sculptor to sculpt a cross for a Klan service.
“I don’t think you could force the African American sculptor to sculpt a cross for the Klan service,” Francisco argued.
He’s absolutely, positively 100 percent right. You can’t force an African-American sculptor to sculpt a cross for a Klan service. You know why? The Klan is not a “protected class” under civil rights law.
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The game Francisco is playing is simple. Like Trump’s belief that there were good people “on all sides” during the violence at Charlottesville, Francisco is holding up racist asshole whites as being the equivalent of homosexuals, racial minorities, and religious minorities as a group that is being discriminated against. But here’s the problem. When you look at which Americans are members of protected classes, you quickly see that with the singular exception of religion (which is included to protect members of small, historically persecuted sects), the people receiving protection under civil rights laws are members of groups that they have no choice but to be a member of. They are people who are members of groups that have experienced historical discrimination due to their age, sexual orientation, race, national origin, or being physically and mentally handicapped. Being a racist asshole is not a characteristic that earns you protected status.
Gandy nails it:
Setting aside the fact that Black people have been forced to do business with the Klan since we got here—remember, the Klan was a viable political force in the early 20th century, and several of our presidents were Klan members—pretending that serving gay customers is the same as serving the Klan is simply a poor and transparent attempt to excuse bigotry.
Ever since day 1 of our current nightmare situation, Trump has sought to protect, coddle, and defend bigots and bigotry. And now one of the most important and little known officials in any administration, the Solicitor General, the people’s lawyer, has now stated on the record that there’s no difference between a KKK cross burning and a gay wedding.