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How Justice Kennedy Fell for a Right-Wing Meme

In a big gay rights case, the Supreme Court's swing vote appeared swayed by the idea that Christians are the real victims of oppression.

Eric Thayer/Getty Images

It’s been less than three years since the U.S. Supreme Court legalized same-sex marriage across the land, in a stirring, spotlight-grabbing decision handed down by Justice Anthony Kennedy. And yet, during Tuesday’s oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case in which Colorado baker Jack Phillips refused to create a wedding cake for a same-sex couple, Kennedy’s line of questioning seemed to imply that it was the baker, not the couple, who had been discriminated against.

Speaking to the lawyer representing Colorado, Kennedy, who is expected to cast the crucial swing vote in the case, homed in on an offhand remark made by one of the state’s seven commissioners on civil rights at a July 2014 hearing:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

This quote is likely familiar to anyone supporting Jack Phillips in the case. Over the past several months, conservative Christian media outlets and advocacy groups have seized on it as evidence that the state was biased when it said he violated Colorado anti-discrimination laws.

In a September e-mail blast, Family Research Council executive vice president William “Jerry” Boykin urged the FRC’s supporters to stand with Phillips against the commissioner who “compared Jack standing up for his Christian faith to the actions of Nazis in the Holocaust!”

Earlier that month, the Christian Post ran a video segment showing Phillips walking through an American military cemetery and explaining that he could not possibly have discriminated against the couple in his bake shop, because his father was a soldier in World War II who landed at Normandy and later liberated a Nazi concentration camp.

It’s a common rhetorical twist, one that enshrines Americanness with an impenetrable purity by contrasting it with the country’s most evil and uncontroversial enemy. But in this case, we have to see this nationalist rhetoric through the lens of Christian conservatism. This conservatism is mostly white, and rigid on sexuality and gender norms. In a recent PRRI survey on American values, a majority of white evangelicals said they believed wedding-based businesses should be able to refuse same-sex couples. They were the only polled group with this majority view.

Cases like Masterpiece are a symptom of white conservative Christians feeling like they have become outsiders in what they believe is their country. Jack Phillips’s lawyers at the Alliance Defending Freedom have framed his and other similar cases as efforts to protect Americans who have been caught in the crosshairs of Kennedy’s Obergefell decision and LGBTQ rights advocates. They’re trying to protect themselves against what they perceive to be the new dominant cultural norm.

But that new norm hasn’t yet extended to the full protection of the rights of LGBTQ individuals. As Sarah Jones noted in a preview of Masterpiece for The New Republic, LGBTQ people are not a federally protected class, and if the Supreme Court rules against them it will undermine an already patchwork network of local anti-discrimination protections.

Furthermore, Masterpiece is not simply a case of a baker with deeply held religious views. It’s a case of a white Christian baker. It’s hard to imagine the same arguments gaining traction or sympathy with the ADF if Phillips were Muslim—at the very least, the ADF has not emphasized the rights of religious Muslims or recruited Muslims to challenge anti-discrimination ordinances. The group remained silent on the Trump administration’s travel ban except to tell the Ninth Circuit court that the president’s campaign-trail tweets and anti-Muslim rhetoric should not be included in its analysis.

In fact, a ruling in favor of the cake shop may later enable discrimination against members of minority faiths, as Columbia Law School professor Katherine Franke has pointed out. “Religious minorities ... depend on non-discrimination laws to make it possible for them to work,” she said Tuesday. “Religious liberty is at risk with the argument that this narrow sect of people is making.”

But this perceived victimhood on the part of conservative Christians may have found favor at the high court.

While it may not be the case that the justices’ religious views impact their interpretation of the case, their conservatism definitely does. It allows LGBTQ people to be seen not as a protected class, but rather as a new political group with a controversial agenda. During Justice Kennedy’s interrogation of potential religious animus, Justice Samuel Alito chimed in to say, “One thing that’s disturbing about the record here ... is what appears to be a practice of discriminatory treatment based on viewpoint.”

“It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage,” Justice Alito went on to say. “But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”

Here, Alito is treating the approval of or opposition to same-sex marriage simply as a controversial political viewpoint and not as policy question that might relegate certain citizens to second-class status. When he says “a cake that expresses the approval of same-sex marriage,” he means a cake for a gay couple.

Meanwhile, the commissioner’s suggestion that religion has been used as a basis for discrimination—a historical fact—was cast as an attack on Jack Phillips’s Christian identity. “This case comes down to who you view is the aggrieved party,” said Greg Lipper, a former senior litigation counsel for Americans United for Separation of Church and State. “If you take a step back, until 2003, it was legal for states to prohibit gay people from having sex. Until 2015, it was legal to prohibit gay people from getting married. LGBT people continue to be subject to higher rates of discrimination, harassment, suicide, and all of those things.”

Kennedy’s questions on Tuesday, however, made it sound as though he believes the Christian wedding vendors are the aggrieved ones. “Counselor, tolerance is essential in a free society,” said the justice. “And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”

Supreme Court justices can be hard to read, but this line of questioning indicates that Kennedy might be swayed by the baker’s case, according to Lipper, who said “the fact that he seems viscerally more concerned with the bakery than with the discriminated against couple is not a good sign.”