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The Masterpiece Cakeshop Case Is Not About Religious Freedom

Jack Phillips, owner of Masterpiece Cakeshop, decorating a cake at his shop in Lakewood, Colo.Credit...Nick Cote for The New York Times

I opened the door of a business called True’s.

It was a pharmacy run by a conservative Republican, a man who eventually served as the speaker of the House in the Maine State Legislature. It occurred to me, as I walked in, that the store might well refuse to fill my prescription, given my condition. And I wondered whether the pharmacy’s actions would be legal if, indeed, the pharmacist argued that helping a person like me went against his beliefs.

After all, there’s a long history of people using religious liberty as reason to justify their refusal to provide a public service offered by their business. In 1968, the owner of a barbecue restaurant — Piggie Park, in South Carolina — held that his religious beliefs gave him the right to withhold service from African-Americans. The owner, Maurice Bessinger, argued that the Civil Rights Act violated his freedom of religion, because “his religious beliefs compel him to oppose any integration of the races whatever.”

More recently, a pediatrician rejected Krista and Jamie Contreras’s child as a patient in Roseville, Mich., in 2014. The doctor, saying she had given the matter “much prayer,” decided that she couldn’t provide health care to their baby because they are lesbians.

On Tuesday, in a case supported by the Trump administration and a group called Alliance Defending Freedom, a broad right to discriminate on the basis of faith will be argued before the Supreme Court. If you’ve never heard of the Alliance Defending Freedom, the name alone is probably a tip off that freedom is the last thing it’s concerned with defending. The Southern Poverty Law Center has designated it a hate group.

Yes, we have reached a point in our history where no one is surprised for one moment that in a case being argued before the Supreme Court, the White House is on the same side as a designated hate group.

By now maybe you’re familiar with the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. A baker in Lakewood, Colo., named Jack Phillips refused to make a wedding cake for Charlie Craig and David Mullins, because their loving legal union violated his Christian beliefs. A series of lower courts has sided with Mr. Craig and Mr. Mullins, but the appeals process has led to the Supreme Court, where it is expected that the swing vote will ultimately rest with Associate Justice Anthony Kennedy, who wrote the majority opinion in Obergefell v. Hodges, which legalized marriage equality.

There are two important things to know about the religious freedom/wedding cake case. One is that it’s not about religious freedom — it’s about religious exemption. The other is that it’s about a whole lot more than wedding cakes.

No one valuing our Constitution could reasonably oppose religious freedom, and as a person with a strong Christian faith of my own, I’m grateful for the ways in which the practice of my beliefs is protected by the First Amendment.

But Masterpiece has nothing to do with religious freedom. It’s about enshrining a freedom to discriminate. Historically, religious exemptions from the law have occasionally been granted to protect the person who holds the belief. But this case is different, in that it gives an individual the right to harm someone else. And that’s what the Masterpiece case is about: It would give individuals the right to discriminate.

It’s about landlords who could legally refuse to rent to someone because of who they are.

It’s about adoption agencies that could legally deny individuals and couples the right to have a family.

It’s about doctors who could legally refuse services to gay men and lesbians, or their children.

It’s about medical clinics that could refuse service to people who are H.I.V. positive. It’s about pharmacies that could legally deny birth control to single mothers or to anyone whose relationship the pharmacist might disapprove of.

Some of this havoc has already begun. In Mississippi, a funeral home refused to cremate a man’s husband once it learned the dead man had been gay. In Kentucky, a religious exemption law allows schools to bar L.G.B.T. youth from joining student groups.

Ironically, one group that might wind up discriminated against by the religious exemptions case is — wait for it — religious groups themselves. As one of the groups filing an amicus brief in the case points out, “petitioners’ arguments for a religious exemption permitting denials of service to same-sex couples could also be advanced to support denials of service to people of marginalized faiths.” The long bloody history of the world suggests that giving one faith permission to discriminate against another rarely ends well.

Finally, the court has already considered and rejected faith as justification for discrimination in a previous case. In the Piggie Park decision, the court rejected arguments almost identical to those being made now. That’s why the lawyers for Masterpiece will argue that Mr. Phillips’s cakes are artistic expressions and therefore protected speech.

Mr. Phillips certainly makes nice-looking cakes. But I’m not sure I’d call them artistic expressions, at least not in the same sense as, say, Joyce’s “Ulysses.” That argument demands that the court get into the business of defining art itself, a door the justices open at their peril. Is a well-manicured lawn a form of art by this definition? How about a lean corned beef sandwich? What would not be art if the court rules to protect icing and buttercream?

All of these are interesting arguments, but the point is that aside from the unfairness of this specific case, it’s hard to see how the principles they defend could be confined to sexual-orientation discrimination and not carry over to create a defense of racial or gender discrimination. As Paul Smith, a First Amendment expert and professor at Georgetown University’s Law Center, describes it: “We’ve never allowed a commercial business to justify discrimination against a protected class based on the First Amendment. We shouldn’t start now.”

True’s Pharmacy, in Maine, never treated me with anything less than respect when I appeared at the counter bearing my prescription for estrogen. As a transgender person, this made a huge difference when I was going through transition, a small act of grace during one of the most vulnerable times of my life.

Years later, after the pharmacy closed, I briefly encountered a woman who had worked there, and I told her that I had loved that store — an old-school pharmacy with its own fountain where you really could get an ice cream soda, or a cherry Coke made with actual cherry syrup.

But, I added, I was a little surprised, back in the day, that they’d treated me with such kindness and respect. It wasn’t what I had been expecting.

“But of course we did,” she said. “This is America, isn’t it?”

Jennifer Finney Boylan, a contributing opinion writer, is a professor of English at Barnard College and the author of the novel “Long Black Veil.”

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