Jimmy Kimmel demonstrates why ‘freedom to discriminate’ against gay couples is dangerous
Jimmy Kimmel has taken on religious business owners who refuse to serve gay people.
The anti-LGBT lobby are celebrating a victory this week after a court in Kern County, California ruled in favour of a religious baker who refused to make a cake for a gay couple’s wedding.
The judge ruled that baker Cathy Miller had not discriminated against the couple because she had only refused to make a custom wedding cake for them, while telling them they were still welcome to buy a pre-made cake.
But that precedent could lead to ridiculous extremes – as ABC’s Jimmy Kimmel helpfully demonstrated in a skit on Friday.
In the skit, ‘Food for Thought’, Kimmel plays a waiter at a restaurant.
Approaching a table, he says: “We have a few specials tonight. Before I list them, I want to ask, does anyone have any food allergies? Any dietary restrictions? Are any of you gay?”
When one of the women at the table says that she’s gay, he responds: “Well, I should let you know that you won’t be enjoying any of our signature salads tonight.
“Our salad chef, his name’s Tony, and he believes homosexuality is a sin, so, he won’t be creating any of our salads for you.”
When she queries this, he explains: “Tony won’t make a salad for you, because it violates his religious beliefs, but I could bring you a salad he made yesterday, before he knew you were gay?”
Meanwhile, her friend orders a lasagne.
He responds: “I have to ask, are you Jewish by any chance?”
When the customer says yes, the waiter responds: “I’m sorry, I should have mentioned, the lasagne is not for Jews tonight.”
It’s not discrimination though, because he adds: “I’ll bring you both the three-bean casserole.”
The skit comes to a head when one of the customers orders a steak.
The waiter says: “The steak? How dare you! Our chef is Hindu, cows are sacred to him. You think he’s going to commit blasphemy just because you want a steak?”
A separate ‘freedom to discriminate’ case is currently before the Supreme Court – and the Trump-Pence administration has weighed in on the side of the baker.
During the oral arguments, Donald Trump’s Solicitor General claimed it should be acceptable for artistic businesses to put up ‘we do not serve gay couples’ signs.
Solicitor General of the United States Noel Francisco delivered oral arguments as part of the baker’s defence on behalf of the Trump administration.
Appearing before the court, Francisco likened the gay wedding to the KKK.
He said: “This case raises an important issue for a small group of individuals; namely, whether the state may compel business owners, including professional artists, to engage in speech in connection with an expressive event like a marriage celebration to which they’re deeply opposed.”
He added: “Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service.”
The Trump official claimed it was “a narrow category of services that do cross the threshold into protected speech”.
Incredibly, Francisco appeared to answer in the affirmative when Justice Kennedy asked if the baker could “put a sign in his window [saying] ‘we do not bake cakes for gay weddings”.
Francisco said: “Your Honor, I think that he could say he does not make custom-made wedding cakes for gay weddings, but most cakes would not cross that threshold.”
Asked if the argument was an “affront to the gay community”, Francisco added: “I agree that there are dignity interests at stake here, and I would not minimize the dignity interests to [the gay couple] one bit, but there are dignity interests on the other side here too.”
Justice Sotomayor latched on to the claim.
She said: “We live in a society with competing beliefs, and all of our cases have always said where LGBT people have been humiliated, disrespected, treated uncivilly.
“The briefs are filled with situations that the gay couple who was left on the side of the highway on a rainy night, people who have been denied medical treatment or whose children have been denied medical treatment because the doctor didn’t believe in same-sex parenthood, et cetera.
“We’ve always said in our public accommodations law we can’t change your private beliefs, we can’t compel you to like these people, we can’t compel you to bring them into your home, but if you want to be a part of our community, of our civic community, there’s certain behaviour, conduct
you can’t engage in.
“And that includes not selling products that you sell to everyone else to people simply because of their either race, religion, national origin, gender, and in this case sexual orientation.
“So we can’t legislate civility and rudeness, but we can and have permitted it as a compelling state interest legislating behaviour.”
The Trump official responded: “We don’t think you can force a speaker to join the parade.
“Because when you force a speaker to both engage in speech and contribute that speech to an expressive event that they disagree with, you fundamentally transform the nature of their message from one that they want to say to one that they don’t want to say.”
Elsewhere, Supreme Court Justice Kagan asked whether any extension of rights for “artistic expression” could be used more widely to license discrimination.
She asked: “How do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist?
“I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in? The baker is engaged in speech, but the chef is not engaged in speech?”
Justice Kagan also asked whether the hypothetical exemptions from anti-discrimination laws would apply to people who object to interracial or interreligious marriage on religious grounds.
The justices also asked whether the arguments for discrimination against gay couples would also “trump public accommodation laws against
discrimination protecting customers [based on] race”
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Despite the rigorous grilling from the liberal justices, experts say that the court’s conservative majority appeared sympathetic to the baker’s case.
The Human Rights Campaign said the case “will either protect the fundamental equality of LGBTQ people, or set a dangerous precedent giving businesses a license to discriminate”.
HRC President Chad Griffin said: “At its core, this case is a cynical effort to manipulate the First Amendment in order to provide a license to discriminate against LGBTQ people and our families.
“The Trump-Pence administration’s decision to back discrimination in this case is another attack in their all-out war against the LGBTQ community.
“At every turn, they have sought to undermine the civil rights of LGBTQ people. It’s crucial that the justices reject discrimination and stand on the side of fairness and equality.”
HRC Legal Director Sarah Warbelow added: “In the United States, businesses that are open to the public get to decide what to serve, but not who they serve. The First Amendment cannot and should not be distorted as a weapon of discrimination.
“The ramifications of allowing people to pick and choose who they will serve could have severe consequences not only for LGBTQ people, but other minorities as well. Such a decision would put into jeopardy long-standing laws against discrimination across the country.”