The Washington PostDemocracy Dies in Darkness

Opinion On gay rights, conservatives — and the Trump administration — are in full retreat

The Supreme Court ruled 7-2 in favor of Masterpiece Cakeshop baker Jack Phillips, who refused to bake a cake for a same-sex couple. (Video: Monica Akhtar, Victoria Walker/The Washington Post)

There are some parts of the Republican coalition who feel like they haven’t gotten what they expected from the presidency of Donald Trump. Those who are opposed to gay rights, however, have little to complain about. Here’s the latest:

In a major upcoming Supreme Court case that weighs equal rights with religious liberty, the Trump administration on Thursday sided with a Colorado baker who refused to bake a wedding cake for a same-sex couple.
The Department of Justice on Thursday filed a brief on behalf of baker Jack Phillips, who was found to have violated the Colorado Anti-Discrimination Act by refusing to created a cake to celebrate the marriage of Charlie Craig and David Mullins in 2012. Phillips said he doesn’t create wedding cakes for same-sex couples because it would violate his religious beliefs.
The government agreed with Phillips that his cakes are a form of expression, and he cannot be compelled to use his talents for something in which he does not believe.

I won’t go too deeply into the legal arguments around this case, except to say that it gets to a fundamental question: Is it okay to discriminate against gay people? Colorado has an antidiscrimination law that explicitly protects citizens from discrimination in public accommodations on the basis of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry,” and the baker clearly violated that law. He claims, however, that he should be able to discriminate because his antipathy toward gay couples is based on religious beliefs. In the case of other kinds of discrimination, we don’t accept that as an excuse.

If you own a restaurant, you can’t put up a “Whites only” sign and say that your reading of the Bible mandates that you refuse to serve black people. Even if your beliefs are sincerely held, we’ve decided that our societal interest in stopping discrimination outweighs your religious freedom. Although the administration takes the position that it’s the baker’s artistic expression in making a cake that gives him greater latitude to discriminate (a somewhat different legal matter), the larger question we as a society are grappling with is whether, broadly speaking, it should be permissible to discriminate against gay people as it has been for most of history, or whether we’ve now moved beyond that.

The Republican Party’s answer to the question of whether discrimination should be allowed is, “Pretty much, yeah.” But they’re fighting a rear guard action, constantly changing their position on what kinds of discrimination are acceptable as they race to catch up to a public that keeps leaving them behind.

Both parties have had to evolve in response to the rapid change in public opinion, but Democrats have had a much easier time of it. And opinion has been transformed in a very short time. For instance, in 2007, the Pew Research Center found the public opposed to same-sex marriage by a margin of 54-37. Ten years later, the public supported it by 62-32 — from 17 points in opposition to 30 points in favor. You’ll have a hard time finding another issue on which there’s been a net swing in opinion of 47 points in just a decade.

While marriage as gotten much of the attention, the inclusion of LGBTQ Americans as people who deserve the same rights as anyone else brings with it a series of particular questions, which has led to a repeating cycle as these issues play out in our public debate. LGBTQ people demand equal treatment in some area, and conservatives say, “My god, if we allow that, it will be a cataclysm!”

Then the public talks and thinks about it, and comes to the collective conclusion that it’s really no big deal. The change comes to pass, and eventually conservatives realize that they’ve lost the argument and they stop talking about it, with no more than a few exceptions. (You won’t find too many Republican politicians loudly arguing that the Supreme Court should overturn Obergefell v. Hodges and allow states to ban same-sex marriage again.) They then retreat to a new, smaller hill that they say they absolutely must defend if society is to survive. Okay, they say, we can live with gay people not being banned from teaching, but if they can get married, that’ll be a disaster. Then: Okay, we can live with gay people getting married, but what really matters is that bakers be allowed to discriminate.

Yet they keep getting undermined by the facts on the ground. Again and again, the massive social disruption that conservatives have predicted when gay people are granted civil rights has failed to materialize. It’s been two years since the Supreme Court legalized same-sex marriage everywhere, and straight couples haven’t rushed to get divorced and abandon their children. It’s been six years since the end of “Don’t Ask, Don’t Tell,” allowing gay people to serve openly in the military, and we never saw the catastrophic breakdown in morale and unit cohesion that conservatives said would occur. It turned out that people in the military handled it just fine, just like it turns out that people handle having married gay neighbors just fine, and kids handle being told that some of their friends have two mommies or two daddies just fine.

To be clear, I’m not saying that gay people don’t still suffer plenty of hostility and discrimination, because they do. But once Americans get a chance to talk and think about the issue and interact with the gay people in their own lives, most of them are in favor of eliminating discrimination.

Still, that doesn’t include everyone, and it doesn’t include President Trump’s most committed supporters, particularly the evangelical Christian conservatives who know that they’re a dwindling portion of the population and increasingly feel like the culture is rejecting their values and leaving them behind — which it is.

So they can find some solace in the fact that Donald Trump has rewarded their loyalty by waging an assault on gay rights. Here’s some of what the Trump administration has done in its nearly eight months in office, even before the case of the anti-gay baker:

  • Argued in court that the Civil Rights Act does not protect gay people from discrimination in the workplace.
  • Moved to ban transgender Americans from serving in the armed forces.
  • Revoked an Obama administration guidance to public schools instructing them to avoid discriminating against transgender students.
  • Removed questions on sexual identity from Department of Health and Human Services surveys, eliminating data that could be used to identify challenges LGBTQ Americans face.
  • Rescinded an executive order President Obama had signed requiring federal contractors to verify their compliance with civil rights laws.

There will no doubt be more over the next three years, and some of it will make gay people’s lives more difficult. But it won’t change the direction of history.