Alex Blaze

City councillor: Coming Out Day is like an Aryan Nations march

Filed By Alex Blaze | October 11, 2010 1:30 PM | comments

Filed in: Politics
Tags: cupcakegate, indiana, indiana equality

For those of you not following Cupcakegate, a bakery, Just Cookies in Indianapolis, rainbow-cupcake.jpgrefused to fill out an order of rainbow cupcakes for an LGBT student group, citing multiple reasons (we don't have all the colors of the rainbow, we don't do cupcakes, we didn't have enough time for an order that large) but eventually admitting that they consider the rainbow flag an "obscenity" and that their "family values" prevented them from filling the order.

Since Indianapolis includes sexual orientation in their anti-discrimination ordinance, people have been wondering if this would be a test of that law. If it is, then the law has failed.

An op-ed in the Indianapolis Star by a current (Jackie Nytes) and a former (Scott Keller) city council member and two staffers from an org that opposes ENDA says the ordinance doesn't apply here because the discrimination did not occur because the customers were gay, but because they wanted the pastries for a political event, namely Coming Out Day.

It works both ways, you know, since Coming Out Day is pretty much like a Klan rally or an Aryan Nations event or even an anti-gay rally (since being homophobic and against homophobia are the same thing since they both involve having opinions, which are just so messy and hard to deal with):

Instead, it appears to us that it was National Coming Out Day that they declined to support, an annual project to promote "real political and social change" of the sort the owners of the City Market stand oppose. We suspect that they would have refused this particular order no matter who placed it, gay or straight.

In our view, it would be wrong to force a business to support a political project with which its owners do not agree. While a Jewish printer might be compelled by the law to offer her services to somebody who claims to be an Aryan, we do not expect that the ordinance would compel her to print banners promoting a march by the Aryan Nations. While an African-American pub owner must provide services to customers of any race, we do not expect that he would be compelled to supply alcohol for a white supremacist political fundraiser. And while a gay or lesbian restaurant owner must serve customers regardless of their religious affiliation, we do not expect the ordinance would compel that business owner to cater a Statehouse rally by a conservative group hostile to the rights of gay and lesbian citizens.

Even if one looks past the clumsy comparisons, there is the fact that that Just Cookies co-owner Lilly Stockton said, "She didn't tell me what [the cupcakes were] for," and her husband David later said that he knew what the rainbow symbolized. There's plenty of evidence that the owners of Just Cookies believed that the cupcakes were for gays generally, not specifically for National Coming Out Day.

I'm pointing that out not just because it makes a difference in understanding the bakers' motivations, but also because it shows that the op-ed authors were just looking for an excuse for this bakery instead of dispassionately examining the facts of the case. As Nytes told the media in another instance, the ordinance was "never intended for good businesses." How one makes a distinction between a "good" business that discriminates and a "bad" business that discriminates is beyond me.

Getting past all that, National Coming Out Day could hardly be described as an event that's only about advancing a certain political agenda, completely divorced from celebrating people's identities. Here's Wikipedia:

National Coming Out Day is an internationally observed civil awareness day for coming out and discussion about gay, lesbian, bisexual, asexual and transgender (LGBT) issues. It is observed by members of the LGBT communities and their supporters (often referred to as "allies") on October 11 every year[1], or October 12 in the United Kingdom[2].

I don't see anything there about being required to have a certain political opinion or advancing a particular political agenda. It's non-ideological; that's why queer leftists, progressives, liberals, centrists, conservatives, radicals, reactionaries, and libertarians are able to participate.

Moreover, their reasoning effectively guts the human rights ordinance, particularly when it comes to sexual orientation. How in the world is someone going to know someone's sexual orientation unless they come out? If coming out is a political act that creates an exemption to the ordinance, then the ordinance can't really apply anywhere. If a private school teacher comes out and is fired, will the city council just say that the school was against the political act of coming out and therefore was completely within its rights to fire that teacher?

And you have to wonder where this reasoning stops. Could a hotel owner not rent rooms to people in town for the Indianapolis Black Expo? It's not racism, she's just against the Black Expo's political agenda. How could anyone be so impolite as to imply that such a decision would be motivated by racism? And could a parking lot owner not allow people going to the Cinco de Mayo celebration to park? He isn't racist, he's just against the very political event that is Cinco de Mayo, originally a celebration of a military victory over France and now an important political statement as people who are politically opposed to Mexicans (but not racist!) don't like it.

It just seems unlikely to me that such laws make a distinction between discrimination against someone's identity and discrimination against making that identity publicly known. It also seems unlikely that there would be a distinction between making that identity publicly known and holding an event celebrating making that identity publicly known.

That's not splitting hairs, because to effectively split hairs there would have to be instances in which the ordinance would apply under that reasoning. Arguing that discrimination is fine as long as the discriminator says that they're just against the actions and characteristics that define a group and not the group itself means that the ordinance can't be enforced. And the fact that the Indianapolis Star applauds such asinine reasoning on the grounds that it's so polite and mature and that what passes for an LGBT org in Indiana signed on to a statement that basically made the "They're not homophobic, just opposed to homosexuality" shows just how far that state has to go.


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Wilson46201 | October 11, 2010 2:11 PM

I was at the Rally downtown at the City Market. Sadly, Scott Keller, a former city councilor who helped pass the Indpls HRO spoke and carried on about churches and social clubs and how people couldn't be forced to support causes they opposed.

A BAKERY IS NOT A CHURCH!

Bakery customers were trying to buy cupcakes for cash. They were denied because of the self-declared sexual orientation of the customer.

If this is not a simple, open-and-shut case of LGBTQ discrimination what would be?

( There were several drag performers this morning. I wondered if the Bigots Bakery would refuse to sell them anything at all? )

Who needs enemies when the LGBT community has "friends" like Nytes and Indiana Equality?

The interesting thing is always to read the comments on the website of the local paper (Indianapolis Star) whenever some article about GLBT issues is published, which are pretty uniformly anti-gay. Very insightful. ~

I've read many of the "local" comments about this action. They're not pretty. I think we're the losers in at least the publicity part of this bake-off.

Personally, I feel it has gone pretty well. The whole situation is shining light on how ppl here really feel about gay people, and I feel that a lot of ppl in the community will be ashamed of that (especially if were covered nationally), and perhaps change their attitudes a bit. They may even look at Just Cookies if they are in City Market and get creeped out to see the owners working there, and decide to just stay away from that area of the Market.

Most people avoid City Market anyway. But from what I've been reading, Just Cookies' business has been increasing, not decreasing.

I dunno...most of what I have seen about the 'lines out the door' is in comments from homophobes. My guess is that the owner is certainly a hero on conservative Christian circles. So I am not saying that ppl are going to avoid his business, just that I would hope they would.

Unfortunately, a poll by RTV6 had 80% supporting the bakery as of the 11pm newscast. I so miss liberal South Florida.

AMANDA JOSEPH | October 12, 2010 2:20 AM

The business is increasing because the company is in the news...the quote of no such thing as bad publicity in its finest!

Alex, I don't know what the answer is here, but I do think that playing Devil's Advocate might add a different perspective:

Alex, if you ran a bakery in City Market and Fred Phelps and the Westboro Baptist Church ordered a cake with "GOD HATES FAGS" written on it, followed by the text of Levitucus 18:22, how would you handle the situation? Would you bite your lip and produce and sell them the cake, because not to do so would constitute religious discrimination? Or would you outsource the cake to another bakery (an option the Stockton's have never mentioned)? Or would you invent a "valid business reason" that you couldn't produce the cake (such as, "I'm sorry, but you are ordering the cake only six months in advance, and that doesn't allow us enough time")?

Then, if you provided the cake, resigned to the conclusion that the law requires you to, how would you feel about that? Would you feel like you sold out, that you put business before your principles?

Finally, if it is found that the bakery is discriminating, and the business owners remain adamant, then what remedy is appropriate? Should their contract to do business in City Market be canceled or non-renewed?

I'm not necessarily taking sides ... I'm just asking.

If the Phelps folks wanted a hate cake, I'd probably want to do it because I'd think it's funny. I have a stupid sense of humor that way. But then my business partners would tell me not to because it's not in good taste, and I'm sure we'd have a foul language policy that could be pointed to.

But that situation isn't analogous. If the LGBT student group wanted a cake that said "FUCK CHRISTOFASCIST HICKS IN THE ASS" I could understand a bakery not wanting to do that.

An analogous situation for religion would be a synagogue wanting cupcakes with stars of David on them. If a bakery said "We have no problem with Jews we just don't want to promote Judaism," I don't think we'd even be having this conversation right now and there'd be no city councillors in the Indy Star saying that we should respect their decision to not advance the secret, international Jewish conspiracy.

About the remedy, I agree that losing their business space is harsh. I think that's part of the problem here - people don't actually think they should lose their business space over that discrimination and they're working backwards from that and making up stupid reasons to let them off the hook. I'd like a system more like what I read about in the UK or northern European countries - many small, local human rights tribunals, strong protections for a variety of situations, but small fines as punishment ($1000 for individuals, $10K max for businesses) so long as no one was physically hurt.

I dont want to see them kicked out, either. What I would love though is for a lot of the ppl who used to buy cookies there to pass the place up, and them go out b/c noone wants to do business with them, just like they didnt want to do business with the IUPUI Diversity Group.

You use the Jewish example, Alex, but in today's climate I would find the idea that some bakery might want to refuse to bake Islamic star-and-crescent-moon cupcakes even more believable. Anti-semitism is out, but Islamophobia is very IN.

As Andrew Sullivan said to Charlie Rose last night, I too fear that this country might be on the breaking edge of another chapter of McCarthyism. The targets will be different, but the witchhunting, fear and hysteria will be all the same.

Asking to bake rainbow cupcakes does NOT compare to the hate that the cake would symbolize. They are two different things. It would, perhaps, compare to someone from Mexico asking for green/white/red cupcakes...

Apples and oranges. Coming Out day is not a direct assault on Christians. The example used in the letter from IE was way off and as wrong as it could be.
A better example would be if a Klansman owned a printer and refused to print flyers for Circle City Classic.
Coming Out Day has nothing to do with the bakers. So compairing it to having to make something that was an attack on the baker is way off.

AJ, well, besides that it sounds like a LOT of phrases to jam onto one cake top...

Phelps doing ANYTHING is doing it in order to provoke. I'd point to a bakery policy of "no offensive or hateful messages" on cakes. Similar to why a group of teenage boys, despite having the money, can't write swear words onto the cake. I'm not sure many bakeries have this in place, but I bet they would if they got inundated with people requesting dirty jokes and swear words on cakes.

Not a bad idea ... Sometimes the "Personal Ads" sections in local classified ads have policies like that.

Ok, let's say it isn't Fred Phelps, it's the Pentecostal congregation down the street. And let's say we eliminate the heading "GOD HATES FAGS" ...

... at this point, we are just quoting a Bible verse ...

... So now what? Do we produce and sell them the cake?

Oh holy hell. Reason #6342 why Indiana Equality should be immediately disbanded and a real LGBT organization formed in Indiana. They oppose employment rights, won't advocate for marriage and now they excuse discrimination. Look for a personal post from me when I'm back from vacay on this one. Simply put - they're liars. I was the lead lobbyist for this HRO using the talking points Nytes, Keller and IE provided and this was NOT what I lobbied for or how it was explained to councilors.

Don Sherfick Don Sherfick | October 11, 2010 7:26 PM

Alex, as I think you know, and in the interest of full disclosure, I'm both a (largely alumnus) Bilerico contributor (formerly specializing in speculating about a Larry Craig run for the Vice-Presidency) as well as having a role in Indiana Equality Action's legislative efforts, particularly concerning the so-called "Indiana Marriage Protection Amendment".

Since CupcakeGate first broke I've played devil's advocate with myself on the legal aspect of this one, alternately winning and loosing for and against my own positions. The bottom line here seems to be that as in so many things there is an inherent tension between First Amendment rights and consitutional equal protection/statutory principles underpinning antidiscrimination measures.

It's the kind of tension that ultimately the judiciary (be they those hated "unelected activist judges" or otherwise) have to try and balance, often with results which one or the other side of the cultural specturm finds totally un-American and unacceptable. Nonetheless, that's the process.

Is being identified with an LGBT advocacy group the same as being LGBT, or perhaps being perceived as LGBT? Part of me says yes and the other rejects that automatic notion. One of the problems is that single instances, rather than consistent patterns, may not rise to a sufficient level for meaningful adjudication to be possible.

Undoubtedly just being openly LGBT is a "political statement", and a purely First Amendment argument would seem to nullify any kind of discrimination based on turning away an openly gay individual. In the 1950's a person who might pass as white but who went to a lunch counter and stood "black and proud" was also making a political statement, but I doubt that an argument taking that position to evade the Civil Rights Act of 1964 would get very far. (Rand Paul seems to have found that out recently) I submit that the development in jurisprudence concerning LGBT issues has not yet been as full as that surrounding racial discrimination......partly because of the "it's really a choice" syndrome. I'm not aware of any "conscience clauses" or "religious exceptions" to laws that forbid racial discrimination......but they seem to be a part of a number of LGBT-related measures.

All of this is to say that in 2010, at least, there aren't perfect answers as to where the balance ought to be, although absolutists on both sides sometimes seem to argue that there ought not to be any balance at all......just one way or the other. In that sense, neither side is in the real world.

On balance, I think Indiana Equality's course of action concerning the matter was the correct one. But I understand the contrary argument, since I've gone through some mental gymnastics myself in the past day or so. If nothing else, the episode ought to serve to heighten awareness that there are some competing principles involved.

Don –

Opinions can vary, but I don’t find this to be anywhere near as close a call as you do. Indy’s ordinance protects associations/organizations from discrimination as well as individuals. The question of whether the people ordering the cake were sufficiently known or perceived to be LGBT is moot.

Also, to my knowledge, no judge or human/civil rights agency in the country has interpreted a non-discrimination statute to have the limited scope that the statement suggests. Until this week, the groups raising this "constitutional conflict” have been right wing, anti-gay groups opposed to any protections for our communities. Unfortunately, Saturday’s statement gives support to those groups.

If this is a close call on the law (which I don’t think it is), why would four IE board members come down on the side that limits protections for our community? IE isn’t a constitutional law study group. It’s an organization created and funded to end sexual orientation and gender identity discrimination in Indiana -- discrimination that is often much more serious than cupcakes. How does this statement forward that mission in any possible way? If anything, it harms that mission by, as Alex points out above, unintentionally gutting one of only three inclusive nondiscrimination ordinances in the state.

If a statement was required and the Board members could not mirror LGBT protections from around the rest of the country, they should have: condemned the business’s homophobia; recognized the student group for drawing attention to the issue; applauded support from IUPUI, other businesses, and the mayor’s office; taken a stand against eviction of the business on the grounds that we need to educate not evict when possible; and, called for a mediated resolution that brings the city closer together.

Additionally, it is my understanding that this was not a statement made by Indiana Equality as an organization. I don’t believe it was endorsed by any of the paid staff or consultants who do such great work day in and day out for IE. (By the way, Alex misidentifies two of the authors of the statement as IE staff. They are not. They are volunteer Board members). Further, I don’t believe the statement or the drastic policy shift it evidences were presented to or voted on by the IE or IEA board. While it is not at all clear from the printed letter, it seems to be a statement of the four authors only. (Let me know if I’m wrong about this.)

In the end, I think this statement is a disaster with misguided and unnecessary legal conclusions. It undercuts the past work and future effectiveness of IE’s staff and consultants. And, worst of all, it lessens protections for LGBT people who live, work, attend school, or do business in the county.

What other qualifications do those non-council reps have for signing on as part of the Letter? I think when 100% of the letter's signers are members of IE in some way or another, it certainly seems like an official statement. And if it wasn't an official statement from the group, then either their qualifications as IE board members or whatever should've been omitted, or a huge disclaimer should've been written into the letter.

Matt - I agree. It would have been very helpful had the standard "Organizational affiliation included for identification purposes only" been included. And maybe it was supposed to be included and was inadvertantly left off. I really don't know.

I was not aware that the Indy HRO explicitly protects "organizations and associations" against discrimination as well as individuals.

That is important. While individuals exist for their own sake, an org or association usually puts out a message, either explicitly or implicitly, because the participants must have some type of viewpoint in common that brings them together. Then the question becomes, can you censor the org's message without discriminating against the org itself --- and that seems really unlikely.

Rick Sutton | October 11, 2010 9:40 PM

Alex, I was all set to weigh in on this...whether Bil is right or wrong, whether a lot of us were duped on the HRO (apparently?!?), etc. Don S. and I have been part of a larger multi-participant discussion on this issue for a couple of mind-numbing days. There's enough material to fuss about, to fill a battleship. But then...

I watched the US Senate debate tonight. Damn. Scared the living Bejesus outta me. Suddenly I don't give a damn about cupcakes. For now.

Cause if you love the Constitution like I do (both editions, federal and Indiana), the US Senate debate tonight should've scared you straight (no pun intended). Dan Coats is poised to belly up with Chairman Jeff Sessions in the Senate Judiciary Committee, passing muster on Obama federal bench nominees. I'd forgotten how utterly void of civility he is. He's veered even further right than he was during his uneventful Senate terms.

If you love your civil rights in the rainbow sprinkles sorta way, like I do, dig a hole and jump in. It's gonna be a bumpy ride.

Cupcakes can wait. As they probably should've in the first place. They'll be there in three weeks---and the HRO issue will probably be finished winding its way through the city investigation, after which our comments will mean more anyway.


I have one question...the name of the company is JUST COOKIES ~ do they even make cupcakes???? If not this whole discussion is just for the sake of arguement!

They sell more than cookies, and several commenters in other blogs have said they've ordered cupcakes before. When I walked by there, they had cinnamon roles and rice krispy treats. I could name my business "Just Hardware" and serve sandwiches if I wanted to.

But nice talking point.

Reading a message never helps with tone, so when you say "nice talking point," it sounds as if you are being dismissive, though I can't tell for sure.

I think whether the company sells cupcakes is actually pivotal. No company is required to make a "custom" product, so the first question before anyone can allege discrimation must be, "Has Just Cookies done a special order of cupcakes before with the same deadline?" If the answer is yes, (which apparently it is), THEN and only then does Just Cookies have to make them for everybody. That fact it selectively chose to not make cupcakes here is how you know they acted with discriminatory intent.

The lesson is this. If Just Cookies (or any other company) doesn't want to have to create a product with a political viewpoint or message, it better stop doing custom orders.

Just to add context to my above remarks, I don't think any of the signers of the statement have anything but the best interests of the LGBT community in mind. When I moved back to Indy and asked around about who I should contact, Jackie's name was at the top of everyone's list. She is widely respected and has done a ton of great work to make Indy a better place.

I've only met Jon on a couple of occassions but have always had a great impression of him as well. A number of people who I really respect think the world of him. I don't know Scott or Wally, but I've heard good things about them too.

Additionally, Sheila Kennedy, a very well known and highly regarded civil rights advocate in IN, recently wrote a blog post in support of the statement: http://sheilakennedy.net/2010/10/cookies-and-savvy-politics/. I disagree with Sheila's legal and strategic conclusions, but I don't doubt her sincerity or intelligence.

All of this is to point out that while I strongly object to the content of the statement and think it was a huge error to publish it (particularly in a way that makes it look like an official IE position), I don't question the integrity or intent of the folks who signed it.

theflyingarab | October 16, 2010 7:20 PM

You know--

in memory of the thousands of homosexuals thrown into concentration camps by Nazis in Germany, all I have to say is--


how DARE they?

Just bake your own cupcakes!!!

Sure, and those (whiners?) blessed with an abundance of melanin should have just went home and made their own food as well ...........