The Ku Klux Klan Isn’t a Protected Class, so Get a Grip Already

How do I know the Klan isn't? Because it says so right in the law.

photo of demonstrators in front of the Supreme Court
Outside the U.S. Supreme Court building during the #OpenToAll rally during oral arguments in the Masterpiece Cakeshop case. Lauryn Gutierrez/Rewire News Group

Jack Phillips, who fancies himself a cake artist and owns a Colorado bakery named Masterpiece Cakeshop, would like you to think that when he refused to bake a wedding cake for a gay couple in 2012, he wasn’t being a homophobic, bigoted, discriminatory, biased, prejudiced, or intolerant jackass.

He was simply acting on his religious beliefs. But Phillips’ denial of his own bias is not the only absurdity here. Listen to this: In his argument before the U.S. Supreme Court on Tuesday for Phillips’ right to be a bigot, the lawyer for the U.S. government likened the gay couple—whose only “crime” was trying to buy a wedding cake—to the Ku Klux Klan.

But back to the beginning: When David Mullins and Charlie Craig asked Phillips to bake a cake for their wedding, Phillips said no. Phillips opposes same-sex marriage—it’s his religion, doncha know—and sent Mullins and Craig packing. And that move landed him in court, where he lost.

Ultimately, he appealed to the U.S. Supreme Court (read my colleague Jessica Mason Pieklo’s analysis of Tuesday’s oral arguments). And here we are—arguing about whether or not cake is speech and religious adherents are permitted to discriminate.

Phillips argues yes on both counts. He would like you to think that his “cake artistry” is expressive conduct. Phillips speaks through his cakes and every time he designs a cake, he is “necessarily express[ing] ideas about marriage and the couple.” Or so he claims in his Court filings.

This claim is ridiculous. As artist Karen Hallion aptly put it on Twitter: “The person who made my wedding cake didn’t ‘participate’ in my wedding. I hired them to make a cake and paid them for it. When I buy gas from a gas station for a road trip, the gas station owner doesn’t participate in my vacation.”

Phillips and his uber conservative lawyers at Alliance Defending Freedom have tried to make this case about religious freedom. They try to gussy it up in flowery language about free speech, expressive conduct, and religious belief, but this is a case about discrimination.

They don’t want to come right out and admit that Phillips and others like him—including this California bakery that’s now being sued for refusing to bake a cake for a lesbian couple—simply don’t want to serve gays because they think gay couples are icky. Rather, they churn out twisted analogies about the KKK and wield Black people as weapons to mask their bigotry. Certainly any Black person would be horrified at being forced to do business with someone as odious as a Klan member. But that’s not the point. Raising the KKK as if it has fuck-all to do with anything is a cynical ploy.

Still, Solicitor General Noel Francisco, the lawyer for the United States, couldn’t stop talking about the KKK during his argument before the court.

He repeatedly said the logic behind the couple’s claims—”If you run a business, you can’t refuse to serve gay people” or, alternatively, “Just make us a goddamn cake already”—would be akin to compelling a Black sculptor to sculpt a cross for a Klan service.

“I don’t think you could force the African American sculptor to sculpt a cross for the Klan service,” Francisco argued.

No shit, Noel.

The anti-discrimination law doesn’t require every business to serve every person on the planet. It merely requires that a business not refuse service based on a person’s protected characteristic.

Just like it’s not discrimination when a restaurant puts up a sign that says, “no shirt, no shoes, no service,” it’s not discrimination if a Black sculptor declines to serve a Klan member.

And there’s one simple reason for that: The KKK is not a protected class. (And, for that matter, neither are shirtless and shoeless people.)

How do I know that the KKK (and the shirtless and shoeless) are not protected classes?

Because it says so right in the law.

Known in legalese as a “public accommodations law,” the Colorado anti-discrimination law says that “places of public accommodation” (business, hotels, restaurants, retail stores, and such) can’t refuse service “because of” a customer’s protected characteristic.

Those protected characteristics?  Disability, race, creed, color, sex, sexual orientation, marital status, national origin, and ancestry.

The law says nothing about members of the KKK (or the shirtless and shoeless).

What, you may ask, is a protected class?

A protected or “suspect” class is made up of “discrete and insular minorities”: a group of people who have historically been subjected to discrimination, comprise a discrete minority (meaning there aren’t a lot of them, percentage-wise), and have immutable characteristics (meaning characteristics that cannot be changed).

The KKK fits none of those descriptions. And what’s more, I’m fairly certain Francisco knows it.

It’s a bullshit bad-faith argument meant to inflame passions rather than appeal to reason.

So next time you’re arguing with someone who says people who oppose same-sex marriage shouldn’t be forced to bake cakes for gay couples just like Black people shouldn’t be forced to do business with the Klan, gently put your hand over their mouth and encourage them to shush.

Setting aside the fact that Black people have been forced to do business with the Klan since we got here—remember, the Klan was a viable political force in the early 20th century, and several of our presidents were Klan members—pretending that serving gay customers is the same as serving the Klan is simply a poor and transparent attempt to excuse bigotry.

The Klan isn’t a protected class. LGBTQ folks are.

So get a fucking grip already.