The Trump DOJ’s Disingenuous KKK Supreme Court Argument


During oral arguments earlier this week, Solicitor General Noel Francisco argued that Masterpiece Cakeshop owner Jack Phillips being compelled to serve LGBTQ couples against his religious beliefs is identical to an African-American sculptor being compelled to sculpt a cross for a Ku Klux Klan meeting. Francisco made this argument repeatedly throughout his statements without a hint of irony or regard for the law, and conservative justices never bothered to correct him.

The problem with the analogy is that – at least in Colorado – sexual orientation is a protected class. Being a member of the KKK is not protected by law anywhere in the United States. Therefore an African-American sculptor could never be compelled by the force of law to serve a member of the KKK.

That simple fact strikes at the heart of much of what is wrong with the Alliance Defending Freedom / Department of Justice argument against laws that protect members of the LGBTQ community from discrimination in places of public accommodation.

How Public Accommodation Laws Work

When characterizing discrimination in a legal setting, attorneys must prove why the discrimination in question violated the law since all discrimination is not illegal. Some forms of discrimination – such as an African-American sculptor refusing service to a member of the KKK – are legally permissible while others are not.

That’s where public accommodation laws come into play. With a solid foundation in the Civil Rights Act of 1964, laws that protect people from being refused service at a business, being fired from an employer for unjust reasons, being treated unfairly in an educational setting and more all have a basis in class protection. The law broadly recognizes classes as deserving heightened protection from discrimination based on a host of factors including a history of discriminatory treatment.

To qualify as being a protected (sometimes called “suspect”) class, a group must be composed of  “discrete and insular minorities.” As defined in the 1938 case of U.S. v. Carolene Products Company, that means “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

That definition became clearer in the 1970’s when the high court added that such groups of people are “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

Being a part of a “discrete and insular” minority includes:

  • Being part of a group of people historically subjected to discrimination
  • Being a “discrete” minority (meaning the group is small in comparison to the overall population)
  • Having immutable (unchangeable) characteristics

While the Civil Rights Act and subsequent laws protecting  “discrete and insular minorities” set the stage for states to pass their own laws to add additional protections for new classes, it set a standard for what can and cannot be considered a constitutionally protected class.

That brings the DOJ’s ongoing analogy into a very specific, very critical light.

The KKK Is Not A Protected Class

It should go without stating, but apparently bears mentioning: the KKK is not a protected class or group of people. In fact, it has been deemed a hate group by both the government and private organizations like the Southern Poverty Law Center (SPLC). That means members of the organization do not enjoy the protection of public accommodation laws when patronizing privately owned businesses open to business to the general public.

Public accommodation laws – be they federal, state, or local – do not require any business to serve all persons without question. They do require businesses to respect the law when it comes to protected classes (and other regulations that may apply).

Which is to say, a black sculptor is free to refuse service to a KKK member asking him to make a cross. A Jewish baker is free to refuse to serve someone asking for a swastika cake. A diner is free to eject a customer for engaging in racist speech. A grocery store if free to refuse service to anyone without a shirt and shoes.

None of those ideologies or behaviors are protected as a class.

In Colorado, however, sexual orientation is protected as a class of people against discrimination in areas of public accommodation.

It’s About Class, Not About Product

A similarly phrased argument attacking Colorado’s protections for LGBTQ people argues that compelling anti-LGBTQ Christian bakers to make cakes for same-sex couples is no different than forcing a Muslim butcher to sell pork or a Jewish baker to design a cake with swastikas.

The problem with this argument is that neither the Muslim butcher nor the Jewish baker are legally compelled do to those things if they don’t offer those goods or services as a part of their regular course of business.

Public accommodation law does not compel business owners to sell goods or services they don’t already offer; rather, it compels business owners to sell their goods and services without regard to customer identity – in particular, protected class identity.

While it’s not illegal for a Jewish baker to refuse to make a cake with swastikas if they don’t offer such designs to other customers, it is illegal for a Jewish baker to refuse to sell a wedding cake to a Christian and not that same cake to a Muslim (as that would be targeting the customer based on protected identity – religious belief).

That’s why the Masterpiece Cakeshop case should – on its surface – be an open and shut case.

Masterpiece Cakeshop

When Masterpiece Cakeshop owner Jack Phillips denied service to David Mullins and Charlie Craig, he didn’t do so because of any explicit claim to artistic expression or free speech. That legal defense would come later when his defense lied in their claims that he discussed cake designs with the couple.

He did not.

When Phillips learned a gay couple wanted a cake, he refused to serve them outright informing them he does not bake wedding cakes for same-sex couples (at all). That refusal made no reference to artistic design, to the sculpting of cakes, or to the availability of a specially-designed cake that wouldn’t be off-the-shelf.

He denied service based on their protected, immutable characteristic: sexual orientation. And that violated Colorado state law as it includes sexual orientation as a protected class based on its qualifications as a historically discriminated against, discrete minority with an immutable characteristic.



Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.


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