True Colors: Trump OK With Signs Refusing Service to LGBTQ People

Persecution and Privilege

Following Supreme Court oral arguments in the Masterpiece Cakeshop case yesterday, White House Press Secretary Sarah Huckabee Sanders confirmed Donald Trump would be fine with businesses hanging Jim Crow-style signs saying they would refuse to serve LGBTQ people. This is just the latest in a long series of anti-LGBTQ measures and positions Trump and his administration have taken since he took office in January.

Precursor to Sanders’ Comments

Comments from Sanders follow a brief filed by the Trump Department of Justice in the Masterpiece Cakeshop case supporting the business owner’s right to deny service to LGBTQ people based on his ‘sincerely held religious beliefs.’ In that unusual brief the government argued, “His custom cakes necessarily express ideas about marriage and the couple.”

They added:

At issue here is whether Phillips may decline requests for wedding cakes that celebrate marriages in conflict with his religious beliefs. The First Amendment guarantees him that freedom because his wedding cakes, each one custom-made, are his artistic expression. Much like an artist sketching on canvas or a sculptor using clay, Phillips meticulously crafts each wedding cake through hours of sketching, sculpting, and hand-painting. The cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips’s voice that a marriage has occurred and should be celebrated. The government can no more force Phillips to speak those messages with his lips than to express them through his art.

[Emphasis Mine]

Analyzing the argument made by Trump’s Justice Department, we wrote at the time, “It seems that while the Trump administration never got around to issuing an executive order legalizing religious freedom justified discrimination against LGBTQ people, they’re doing something much more insidious: they’re attempting to influence the courts to make the proclamation on their behalf to legitimize the argument.”

The Religious Freedom Memo

A few weeks after filing the amicus brief in the Masterpiece Cakeshop case, the Trump Department of Justice rolled out a virulently anti-LGBTQ ‘religious liberty’ memo essentially realizing the fears every LGBTQ civil rights advocate warned about during the 2016 election cycle.

We wrote about the memo in October noting:

Capping off a week where the Department of Justice rescinded workplace protections for transgender people, Attorney General Jeff Sessions released a lengthy memo today outlining the DOJ’s intention to allow discrimination through use of ‘religious liberty’ exceptions. The wide-spanning memo never explicitly mentions LGBTQ people, but targets every industry and avenue LGBTQ people have been fighting legal roadblocks to promote equality.

In its multiple ‘key principle’ statements, the “Protections for Religious Liberty” memo essentially offers everyone from adoption agencies and universities to businesses and government entities a license to discriminate against LGBTQ people.

We actually pointed out the sections of the memo that explicitly apply to today’s news having expected Trump to continue moving the needle further away from LGBTQ protections. Principles 11 and 13-15 of the memo read:

11. RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.

13. A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.

14. Under RFRA, any government action that would substantially burden religious freedom is held to an exceptionally demanding standard.

15. RFRA applies even where a religious adherent seeks an exemption from a requirement to confer benefits on third parties.

While Principle 11 extends the federal Religious Freedom Restoration Act (RFRA) to businesses and individuals, the latter three principles offer guideposts for business owners on how to legally discriminate against members of the LGBTQ community.

The memo’s appendix almost explicitly says this saying, “A law that seeks to compel a private person’s speech or expression contrary to his or her religious beliefs implicates both the freedoms of speech and free exercise.”

The act of engaging in an “expressive activity” is exactly how Jack Phillips’ representation presented his case before the court yesterday much to Justice Kennedy’s positive attention.

Based on this pattern of events, it should come as no surprise that Trump now believes businesses should have the right to hang Jim Crow-style ‘refuse to serve’ signs in their windows notifying LGBTQ customers they are not welcome.

Right To Refuse?

During yesterday’s White House press briefing, New York Times reporter Michael Shear asked, “The lawyer for the solicitor general’s office for the administration said today in the Supreme Court if it would be legal, possible for a baker to put a sign in his window saying ‘we don’t bake cakes for gay weddings.’ Does the president agree that that would be ok?”

“The president certainly supports religious liberty and that’s something he talked about during the campaign and has upheld since taking office,” Sanders responded.

Shear pressed for a yes or no answer, asking if that would include signs.

Speaking slightly over him as he finished his sentence, Sanders said, “I believe that would include that.”

Here’s full video of the exchange:

The question is explicit and uncomplicated as Justice Kennedy asked the solicitor general that very question during oral arguments. He asked if Phillips could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The government’s argument was yes (with a caveat toeing the line that baked goods are protected expression).

The ACLU crystallized the argument saying, “The question, rather, is whether the Constitution grants businesses open to the public the right to violate laws against discrimination in the commercial marketplace if the business happens to sell an artistic product,” to which they said no.

While Kennedy has chosen that side in the past when other protected classes have been discriminated against, he doesn’t appear to believe protections for LGBTQ people are more important than personal religious belief.

ThinkProgress‘ Ian Millhiser wrote a brilliant must-read piece on this subject today.

Continuing Pattern

In October we summarized some of the major offensives and positions Trump has taken to harm the LGBTQ community. We noted:

And then there’s the under-the radar actions the Trump administration has taken to halt or reverse LGBTQ rights.

We asked at the time if there as a line the Trump administration wouldn’t cross. At the moment – as the nation literally has a president who would be willing to have businesses put up signs denying service to LGBTQ people – there doesn’t seem to be.

 

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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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