I was incensed this morning when I stumbled on an editorial in the Washington Post by the baker in the Masterpiece Cakeshop case, Jack Phillips, in which Phillips grossly mischaracterizes what the case is legally about.
Here are the facts.
Charlie and David (pictured left) lived in Colorado. They got engaged in 2011, before gay marriage was legal throughout the U.S. Since it wasn’t legal in Colorado, their plan was to fly to Massachusetts, get married there (where it was legal), and fly back to Colorado to have their reception. They hired a planner to help them with the reception, and the planner told them them that Masterpiece Cakeshop made great cakes. Charlie’s mom was visiting from Wyoming to help with wedding planning, and the three of them went to Masterpiece Cakeshop. They sat down and Jack Phillips, who was working that day, looked up and said, “Hi, who’s the cake for?” Charlie and David said, “It’s for us.” And Phillips said, “I don’t make cakes for same-sex weddings.”
The couple was mortified—especially Charlie, since it happened in front of his mom. They filed a complaint with the Colorado Civil Rights Commission that their civil rights had been violated. The Commission agreed, and the Colorado courts ruled in favor of Charlie and David, too. Phillips appealed to the Supreme Court, arguing that he shouldn’t have to make a cake for a gay couple because it violated his religious belief that gay marriage was morally wrong. He said Colorado was forcing him to choose between his livelihood and his moral beliefs.
Yes, Phillips has a right to religious freedom. But this case is not about religious freedom. Phillips writes that although he would have sold Charlie and David anything else in the shop, he "couldn't design a custom cake to celebrate their same-sex marriage." This makes it sound as if they asked him to put their names on the cake, or to top it with a pair of smiling grooms. But they didn't--and if they had, it would be a very different case. Instead, they asked for a cake--a cake without any speech on it at all.
It is difficult to argue that something becomes "speech" simply because you know it's going to be used for a particular purpose. Phillips was not forced to say anything or write anything that went against his religious beliefs. He writes that if the Supreme Court rules against him, it will "banish his beliefs" from the marketplace. But this completely misunderstands the legal issue. Phillips opened a business to the public. Under Colorado law, you don't get to do that and then decide that you won't sell your product to certain of its members. Suppose a toy store owner wouldn't sell toys to mixed-race kids because the idea of miscegenation went against his religious beliefs?
The case was argued in front of the U.S. Supreme Court in December of last year, and it will be handed down any day now--possibly as soon as Monday. From the oral argument, it was hard to figure out which way the justices were leaning. They spent a lot of time talking about freedom of expression, and whether the mere act of baking a cake was “artistic expression.” If so, it would weigh in favor of protecting Phillips' right not to "express" something he disagreed with. It would also open the door for claims that, for example, a chef doesn't want to make a salad for a same-sex couple celebrating their anniversary.
It's easy, in this era of gay marriage and "Will and Grace" reboots to start thinking that progress is inevitable. The fact that Masterpiece Cakeshop is before the Supreme Court--and that someone like Phillips is making these kinds of claims--underscores that we still have an awful lot of work to do. Here's a great podcast on the topic if you want to delve a little deeper.
BW's note: This post is from the author of the wonderful blog, Lawyers, Dykes, & Money, which you should totally check out!
. . . .
The last time I visited my 111-year-old great great aunt, I considered coming out just to see how she’d take it. On the one hand, maybe I could land some kind of spot in the Guinness Book of World Records. But, on the other, if she died shortly after my disclosure, I’d always vainly wonder if the news had killed her. I decided against it.
My decision hadn’t mattered; evidently, she had pegged me from the moment I walked in the room. Looking me up and down through the giant glasses that took over most of her face, she made a vague reference to my button-down shirt and started talking about her working knowledge of “the gays.”
Gathering courage, I asked her how she knew so much about “these gays” and she replied simply, “Come on now, I read the papers.” Even though her favored papers included the traditionally-conservative Wall Street Journal, when I asked her about her thoughts on gay marriage, she shrugged: “ehh I’m way too old to give two shits about that.”
. . .
While I don’t feel particularly masculine, I had somehow pinged the gaydar of an 111-year-old who grew up before cars were a thing, let alone out gays. To the world, I’m perceived as “Masculine of Center” (“MoC”) or maybe “Androgynous” (i.e. smack in the middle between feminine and masculine). For the purposes of this post, I’ll call myself MoC or Andro, though all kinds of labels get thrown my way (my mother, for example, has confused “baby dyke” and “soft butch,” thus coining the term “baby butch” when she refers to my “class of lesbian.”) I’m told it’s not just about my mode of dress but the way I talk, sit, walk, stand, and gesture. Basically, everything about me is gay.
Navigating the world as I do, I’ve observed that most people who meet me fall into one of two camps—those who know I’m gay right away and those who think I’m a pre-pubescent boy. Because I’m short and thin, even into my 30s, I’m still mistaken for a boy on the regular. A few years ago, when Justin Bieber popularized skinny jeans and shaggy haircuts, my plight only worsened. After threats from friends, I started to compulsively check for my photo on the website “Lesbians Who Look Like Justin Bieber.” Luckily, with Justin Bieber sort of going through puberty, and gay marriage taking the media spotlight, random strangers have begun to understand that I’m not a little boy; I’m a queer woman.
. . .
Last summer during Pride month, I found myself newly single and inspired to attend some “girl parties.” Unfortunately, I discovered that the vast majority of Pride party attendees —no matter their gender presentation—purported to prefer “femmes.” On the flip side, at any given party, the number of Feminine of Center (“FoC”) attendees tends to greatly exceed the number of Andro/MoC folks like myself. So, despite a few unfortunate rejections here and there, I enjoyed favorable odds among those seeking MoC dance partners.
Even though I find myself attracted to a range of gender presentations, I mostly met FoCs who tended to prefer MoCs like myself. Since the straight/cisgender world tends to expect a “masculine” and a “feminine” party in any given relationship (even if it’s just a one night relationship), given my small size, I often felt self-conscious about playing that default masculine role. Only confirming my fears, sometimes, in the morning, after what seemed like a good time was had by all, my FoC guest would look at me, and say: “you’re so tiny; you make me feel like a monster.”
. . .
After Pride month, I decided to return to a normal sleep cycle, give my liver a break, and try an online Tinder date. Rather than meet at a dark bar, I opted for a coffee shop in the sober light of day. Over caffeine, we covered all the basic topics: work, family, hobbies, etc. Afterwards, I walked her to the subway and we parted ways with a slightly awkward hug. That night, I got a text from her:
HER: Hey I had a really nice time over breakfast today—and I normally hate people before noon. My worry is that you work all the time and that I’m 100 feet taller than you.
ME: Well, a lot people have a problem with my height/smallness so I’d be up for friendship if that’s an issue for you. With work, I make time for fun things and people.
HER: It’s not an issue. We could see how it plays out—I’d like to hang again. I’m pretty fun.
Despite her excellent use of the em dash, we didn’t actually go out again. We made tentative plans, each reached out to “reschedule,” and neither of us followed up. The last thing I wanted to do was make another woman feel like a “monster.”
After this Tinder text exchange, I got curious. Knowing I’d likely never see most of my FoC guests again, I occasionally interviewed them about their disparaging comments regarding our size differential. (Spoiler alert: the patriarchy is to blame). Their insecurities fell into two overlapping categories:
Though I can’t say I had a huge sample size, I found that FoCs who had previously mostly dated men particularly struggled with the realization that their attraction to women didn’t neatly track their attraction to men. The perception that they needed a partner to protect them, to always play the role of big spoon, or to reach objects in high places didn’t go away when they started to date women. And sleeping with an MoC like myself who can’t change a light bulb without a serious ladder brought out all sorts of unprocessed feelings that apparently translated into: “you make me feel like a monster.”
Despite my initial offense to “monster” comments, I deeply appreciated the honesty with which most of my FoC guests shared their thoughts about their own gender identity, attraction, and body consciousness. That didn’t mean, of course, that I didn’t internalize or feel self-conscious about some of these “monster” comments.
I realized how much these exchanges had affected me when I matched with a really attractive woman on Tinder this fall—someone who worked in a similar field and seemed to share my values. Within a few minutes of chatting, I asked her to get a drink with me. She agreed.
Before diving into scheduling, I decided to take the precautionary measure of actually reading her short profile. (I had rarely read profiles in the past but a few times I matched with couples looking for a third in their long-term relationship (aka a “unicorn.”). No shade to unicorns, of course.).
Non-Profits and social causes
Drawn to intelligence and kindness
When I saw our six-inch height disparity, insecurity overwhelmed me. I neurotically began to wonder if I should disclose my height to her prior to meeting. And so, I wrote another message:
ME: One caveat since this has been an issue at least twice before: I notice you put your height. I’m like 5’1” so if the height disparity is an issue, just putting it out there. I keep meaning to add it to my profile but I haven’t been on Tinder in a month or two.
ME: Oh and I’m an ENFJ.
I checked my messages compulsively but nothing for hours.
Then, the next day, Tinder indicated that Ms. 5’7” had sent me a message. Anxiously, I opened the app but the message didn’t come through (apparently, due lack of space on my phone). Normally, I would have just given up but I decided not to let my “monster” complex stand in the way.
Torturously, I couldn’t see the message. Somehow, Tinder still allowed me to send messages (just not receive) and so I wrote just one more message to Ms. 5’7”.
ME: Tinder says you’ve sent me a message but the reason I’m never on here half the time is that I can’t read new messages. So, assuming the message wasn’t “no thanks to short people,” feel free to text me at [insert number].
A few hours later, she texted and made friendly conversation, completely ignoring my neurotic and ridiculous height commentary.
Finally, I had to ask:
ME: Are you going to tell me what your Tinder message said?
MS. 5’7”: Not going to tell you exactly what my Tinder message said but I'm sure 5'1 is a good look on you and I appreciate the extroverts in my life :)
Turns out the 5’7” INJF and I had an epic first date. In the morning, she bought be a much-needed coffee and I even thought I’d like to see her again.
Oh and Tinder finally let me see her message when I finally got a new phone:
MS. 5’7”: I don’t care about the height and I’ve liked every ENJF I’ve come across.
I’m glad I was no exception, six-inch height difference notwithstanding.
 By “queer” or “girl” party, I mean a space intended primarily for those who are not cis-male identified. This includes trans, non-binary, and gender queer folks.
 Sadly, Ms. 5’7” and I proved highly incompatible in areas other than height. But on the bright side, I’ll have the summer of 2018 to continue to research height disparities and other fascinating topics in queer lady dating.
Hey, all. It's been a minute. What's happened since then? Well, something in my work life exploded and I was hit by some metaphorical shrapnel and I've been recovering, plus hustling as much as I can to get myself back on track. But don't think I haven't thought of you--I've totally thought of you. Here is a partial list of Random Things. Nothing would make me happier than to read in the comments one or two things that *you* have been thinking.
Um, that's it. Basically I just wanted to say hi. Hi! Happy Thanksgiving!!
A friend wrote a post in response to my post about coming out in 2007 versus 2017, waxing nostalgic about her coming out in the late 1990s. You may not agree with all--or any--of it, but I hope you'll read it and share your comments, especially if you're a BW reader who came out before 2000. Thank you, anonymous awesome friend for picking up the Butch Wonders slack during a helluva tough work week for yours truly.
I was struck by the recent post about what it is like to come out as a lesbian in 2007 vs 2017... I realize I’m dating myself, but it made me think back to when I came out (in high school, in 1998). This was right around when Ellen came out, the same year that Matthew Shepard was murdered, and the year before "Better than Chocolate" came out (if you can believe such a year existed)--way before gay was cool (or even passe, which I think we’re rapidly approaching). And yet, I still think it was a better year to come out than the two decades afterward, for the following reasons:
Jameka Evans was a security guard at Georgia Regional Hospital in Savannah, Georgia. From the beginning of her employment in 2012, Evans was treated badly. She was harassed verbally and physically; she was criticized for wearing a "male" uniform and having a short haircut, and for not carrying herself in a "traditional woman[ly] manner." In short, she was being harassed for both her gender presentation and her sexual orientation.
Evans left her job about a year later, sick of the constant harrassment, and filed a complaint under a federal law known as "Title VII." Title VII prevents discrimination on the basis of sex, including sex stereotyping. The case went to a federal district court, where she lost because the court said that Title VII was intended to protect "sex," not "homosexuality."
Evans then appealed to the next court up (the 11th Circuit, since she lives in Georgia), saying that Title VII prevented discrimination against her on the basis of sexual orientation and gender presentation. That court, too, ruled against her (and as a Slate article pointed out, the ruling was weird in a variety of ways). The court separated the gender nonconformity part from the sexual orientation part. They vacated (basically overturned, but without creating precedent) that part of the district court's order, saying that she could go back and try with that part of the case again.
Evans and her lawyers then asked for something called an "en banc" hearing, which means that instead of the usual three-judge panel, all the judges on the 11th Circuit would have heard the case. This was denied, meaning that the ruling against Evans stands--at least, until the U.S. Supreme Court says otherwise.
So Evans, represented by Lambda Legal, decided to petition the Supreme Court to hear the sexual orientation part of the case. The petition (which you can download from this site if you're interested) is terrific, clearly explaining why discrimination on the basis of sexual orientation is a form of gender discrimination. It states, "It cannot be that Title VII allows an employer to fire Sharon for exercising her constitutional right to marry her girlfriend while retaining her co-worker Samuel after he marries his."
Will the Supreme Court take the case? Who knows. But I suspect it will, since nearly all the circuits have weighed in, there's a circuit split (thanks to the 11th Circuit), and it's an important issue.
To go back to the gender nonconformity piece for a minute: it's kind of interesting: Title VII definitely applies to "sex stereotyping" (as the Supreme Court decided in a 1989 case called Price Waterhouse v. Hopkins), which is what courts rely on to explain that gender nonconformity is covered. Which would seem to mean that trans people are definitely covered, right? So if the Supreme Court ruled against Evans, a few things would happen that seem like sort of untenable outcomes:
Anyhow, it's an exciting case with huge implications. Keep an eye on this one, dear readers.