Supreme Court To Hear Case About LGBTQ Non-Discrimination Laws

Masterpiece Cakeshop

Yesterday the Supreme Court announced it would hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. At the center of that case lies the question: does a private business have the right to discriminate against LGBTQ people? We’ve covered Masterpiece at each stage of its legal journey over the years as business owner Jack Phillips insisted his religious beliefs should exempt him from the Colorado state law that prohibits businesses from discriminating against customers based on sexual orientation.

With the high court’s acceptance of this case, one thing is clear: LGBTQ people are in danger.

For starters, for the Supreme Court to accept a case, at least four justices have to agree a petition has enough merit for the court’s attention. That means – right off the bat – at least four Supreme Court justices are at least entertaining the idea that business owners can confer their personal religious beliefs to their businesses in order to rationalize discrimination against LGBTQ people. But it’s bigger than that.

A decision in favor of discrimination in this case could open the floodgates for all types of religion-sanctioned public accommodation discrimination.

Case History

In the original Masterpiece Cakeshop case, owner Jack Phillips explicitly told a gay couple he was refusing service to them based on their sexual orientation because of his religious beliefs.

We wrote about the case in 2013:

David Mullins and Charlie Craig visited Masterpiece Cakeshop last year, with Craig’s mother, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding.

Immediately after the Colorado Civil Rights Commission issued their decision, Phillips appealed and eventually lost.

The Colorado Civil Rights Commission ruled that a Lakewood bakery violated the Colorado Anti-Discrimination Act by refusing to sell a wedding cake to a gay couple, because of the owner’s personal religious beliefs. At a public hearing today, the commission rejected the bakery’s appeal of an earlier finding of unlawful discrimination by an administrative judge. [SNIP]

Long-standing Colorado state law prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status or sexual orientation. Last year, an administrative judge upheld the Colorado Civil Rights Division’s finding of illegal discrimination by the bakery. Today’s decision from the Colorado Civil Rights Commission affirms the prior ruling. The commission also ordered a change of policy, staff training, and quarterly reporting to confirm that the bakery is not turning away customers due to sexual orientation. [SNIP]

Phillips admitted he had turned away other same-sex couples as a matter of policy despite Colorado’s law

“Masterpiece Cakeshop has willfully and repeatedly considered itself above the law when it comes to discriminating against customers, and the Commission has rightly determined otherwise,” said Sara R. Neel, staff attorney with the ACLU of Colorado.

At issue in lower court cases was mostly the semantics of what constituted a ‘same-sex marriage’ and who could enter into it. (That is, Phillips attempted to argue anyone could legally enter into a same-sex marriage and therefore he was not necessarily targeting the couple based on their sexual orientation.) The court saw through that.

“Masterpiece’s distinction, therefore, is one without a difference,” wrote the appeals court in their decision against the business owner. “But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.”

After the Colorado Supreme Court refused to hear his case, Phillips appealed to the highest court in the land.

Uncharted Territory

That the Supreme Court had four justices willing to entertain a legal religion loophole for public accommodation discrimination is disconcerting. That they denied a nearly identical case just three years ago is even more disconcerting. Between then and now something changed in either the opinion or (more likely) the composition of the court (now that Gorsuch is seated and has already demonstrated bias against LGBTQ people).

Writing for Slate, Mark Joseph Stern noted:

Put differently, four justices are willing to entertain, and probably accept, the bizarre argument that a standard LGBTQ nondiscrimination law violates businesses’ freedom of speech and religion. This radical idea would once again reduce same-sex couples to second-class citizens. Even same-sex couples in LGBTQ-friendly states could not be sure that businesses—from cake shops to restaurants to hotels—would agree to serve them. After all, these businesses would have a constitutional right to turn away same-sex couples at the door.

But this case’s potential for disaster goes much further than merely targeting LGBTQ people for government-sanctioned discrimination – especially since this defense was used once before at the Supreme Court level to defend another form of discrimination.

ThinkProgress‘ Ian Millhiser explained:

The issue of whether religious liberty is a license to discriminate came before the Court in 1968, when the owner of a barbecue restaurant claimed that he should be exempt from the federal ban on whites-only lunch counters because such a ban, in his opinion, “contravenes the will of God.”

A unanimous Supreme Court labeled this argument “patently frivolous.”

Similarly, just last month the Supreme Court explained in Expressions Hair Design v. Schneiderman that a law does not violate the First Amendment because it has an effect on speech that is “only incidental to its primary effect on conduct.” That holding should be fatal to the bakery’s claim that it is immune from an anti-discrimination law because of the law’s (at most) incidental impact on speech.

That the conservative side of the court is now choosing to push the issue of LGBTQ civil rights front and center means they either believe they have a fifth vote in Kennedy or they believe the momentum of the Trump victory in November paired with the appointment of Justice Gorsuch laid the groundwork to roll back civil protections LGBTQ people have spent decades fighting for.

Analyzing Kennedy’s potential vote, Millhiser added:

The most important question, however, is likely to be whether Justice Anthony Kennedy, a conservative who often votes with the liberals in gay rights cases, will go along with the bakery’s efforts to effectively legalize discrimination in states with pro-LGBT laws. It is likely that he will not. Kennedy provided the fifth vote against an anti-LGBT student group that sought a special right to discriminate in Christian Legal Society v. Martinez.

Martinez, however, was framed as a free speech claim, and Kennedy has not weighed in directly on whether a religious objection trumps the right to be free from discrimination. He did, however, vote with Alito in Burwell v. Hobby Lobby, the religion and birth control case, so Kennedy is at least open to the possibility that religious objectors can wield their objections to limit the rights of others.

Hobby Lobby was a game changer in countless ways – one of which could be the successful rolling back of LGBTQ civil rights.

Just as the court found a business owner could transfer their personal religious beliefs to their business to make decisions about their employees’ health care options, it’s not a stretch to see the court leaping from there to another precedent where business owners can similarly transfer those religious viewpoints to the customers they choose to serve or deny.

Unintended Consequences

Should Kennedy side with the conservative wing of the court in Masterpiece, two separate legal precedents will exist to support the creation of different classes of citizenry. So long as its couched in sincerely held religious belief, virtually all types of discrimination could feasibly be advanced through the courts using Masterpiece and Hobby Lobby as case law precedent.

David Savage of the LA Times argued as much in his analysis of the case noting:

The Colorado case is likely to become one of the court’s most contentious cases next term. It could decide whether business owners are allowed to cite their religious views as a reason for refusing to serve gay and lesbian couples. Potentially, it could sweep even more broadly, opening a religious exemption to civil rights laws that could allow discrimination against other groups.

The case, to be heard in the fall, could have a wide effect in states like California that prohibit discrimination against people based on their sexual orientation.

No federal law requires businesses to serve all customers without regard to their sexual orientation, but 21 states have “public accommodations” laws that prohibit discrimination against gays and lesbians.

More broadly, a victory could open up existing federal protections under the Civil Rights Act to further scrutiny as they have always been under attack using the same arguments presented in the Masterpiece Cakeshop petition. In particular, Jim Crow laws (that sanctioned race-based discrimination) were ultimately defended in courts using nearly identical religious freedom arguments.

That the court not only accepted Masterpiecebut held onto the petition long enough for Gorsuch to be seated so they could have four votes to accept it – is deeply disturbing and does not bode well for the future of LGBTQ civil rights.

Previously:

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.

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