Why the Religious Right Can't Have Its (Straight Wedding) Cake and Eat It Too: Breaking the Preservation-Through-Transformation Dynamic in Masterpiece Cakeshop V. Colorado Civil Rights Commission

Abstract

This term, the U.S. Supreme Court will consider the most significant LGBT-rights case since it recognized marriage equality: Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the case is framed as a First Amendment case—whether antidiscrimination law, as applied to secular, for-profit business with Christian owners who oppose same-sex marriage on religious grounds, violates the owners’ Free Exercise and Free Speech rights—there is a secondary and subordinate argument lurking just below the surface, one that presents a risk of great harm to LGBT Americans if it is not exposed and rejected by the Court. This essay exposes that argument as one that is nothing more than a modernized version of the “status-conduct” argument—an argument used three decades ago to justify the Court’s decision in Bowers v. Hardwick and to deny LGBT Americans the protection of the law in all realms of life. The Religious Right has modernized the status-conduct argument in the seemingly neutral garb of the exalted American values of free speech and religious freedom: Christian business owners are not discriminating based on the status of the gay or lesbian customers when refusing same-sex wedding goods and services, but rather are refusing to participate in conduct—the act of marriage. We should not be fooled: In using this old trope in new garb, the Religious Right is attempting to achieve what Professor Reva Siegel calls “transformation-through-preservation”—a dynamic through which a group that opposes civil rights reform modernizes its rhetoric after a civil rights victory in an effort to maintain unequal status regimes. The Religious Right’s modernized status-conduct argument attempts to hide its real goal—ushering in an era of Gay Jim Crow. The essay urges the Court to expose and reject the Religious Right’s attempt at preservation-through-transformation. Failure to do so will preserve anti-equality status regimes by denying formal equality to LGBT Americans and will undermine the legitimacy of the Court’s prior LGBT-rights cases and thus the legitimacy of the Court itself.