For those of you not following Cupcakegate, a bakery, Just Cookies in Indianapolis, refused 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, or October 12 in the United Kingdom.
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.