Two Cases, One Path: The Future of LGBTQ Rights at the Supreme Court

As the U.S. Supreme Court begins hearing arguments in the landmark Masterpiece Cakeshop case today, news of another case they let stand is making news. In the case of Turner v. Pidgeon – a case pitting LGBTQ spousal benefits against the state of Texas – the high court sided with Texas by refusing to hear arguments and letting the last decision stand. That decision – in favor of the state – is the first case to begin chipping away the legal marriage rights LGBTQ couples secured not too long ago when the court decided in Obergefell v. Hodges that same-sex couples have the same legal right to marry as their opposite-sex counterparts.

Texas & Marital Rights

The Austin Statesman reported on the decision:

The U.S. Supreme Court on Monday let stand a Texas ruling that said the right to a marriage license did not entitle same-sex couples to spousal benefits under employee insurance plans.

The city of Houston had asked the high court to overturn last June’s Texas Supreme Court decision, which determined that all marriage-related matters were not decided when the U.S. Supreme Court established a right to same-sex unions in 2015, leaving room for state courts to explore the limits of gay marriage.

The federal court’s decision, issued without comment, allowed the Texas ruling to stand.

One of the city of Houston’s primary arguments rested on the fact that Obergefell literally states that states are obligated to recognize “the constellation of benefits that the States have linked to marriage” for legally married same-sex couples.

The high court even cited that section in another case decided earlier this year in Arkansas.

In this instance, the high court decided not to intervene and to allow a discriminatory state level decision to remain in effect.

To understand how virulently targeted and mean-spirited this decision is consider the path the case took to reach the Supreme Court:

Based on a lawsuit that was all but dead a year ago, the Texas case was a surprising addition to the fight over gay marriage.

The controversy began in 2013, when Houston under then-Mayor Annise Parker began offering employee benefits to the same-sex spouses of employees who had been legally married in other states.

Opponents of gay marriage sued, prompting a district judge to block the benefits, ruling that they violated a state law and constitutional amendment barring government recognition of same-sex marriages. While Houston’s appeal was pending, however, the U.S. Supreme Court overturned state bans on gay marriage in June 2015, ruling that they violated the U.S. Constitution’s guarantee of equal protection by treating gay couples as second-class citizens.

Saying the ruling ended the controversy in the Houston case, the 14th Court of Appeals allowed the city to begin offering spousal benefits to same-sex couples.

The Texas Supreme Court apparently agreed, rejecting the case in September 2016.

But opponents of gay marriage launched a pressure campaign to get the all-Republican court to reconsider. A barrage of emails warned the nine judges of retribution in the GOP primaries, and Republican leaders — including Gov. Greg Abbott, Lt. Gov. Dan Patrick and Attorney General Ken Paxton — argued that the case offered an opportunity to limit the impact of the high court’s ruling on gay marriage.

In a rare reversal, the state Supreme Court relented, accepting the case and eventually ruling that there is no established right to spousal benefits in same-sex marriages. The ruling returned the lawsuit to a Houston district court to determine if the U.S. Supreme Court’s marriage ruling applies to spousal benefits provided by the city of Houston.

And then, from there, the United States Supreme Court – with its newly installed Trumpian justice – allowed that decision to stand unfettered, without comment. 

The Texas Tribune laid out the consequences of the Supreme Court’s failure to act saying:

In its decision, the Texas Supreme Court noted that Obergefell requires states to license and recognize same-sex marriages just as they do opposite-sex marriages but did not hold that “states must provide the same publicly funded benefits to all married persons.”

That does not mean Houston can “constitutionally deny benefits to its employees’ same-sex spouses,” the court added, but the issue must now be resolved “in light of Obergefell.”

Reacting to the news, GLAAD released a statement:

This decision upholds the ruling of the Texas Supreme Court saying there is not a de facto right to government benefits for LGBTQ couples. This decision begins the process to undercut marriage equality by erasing spousal benefits, including health care, for legally married LGBTQ couples in the state of Texas. With all eyes on tomorrow’s oral arguments in the Masterpiece Cakeshop religious exemptions case, the Supreme Court has just let an alarming ruling by the Texas Supreme Court stand which plainly undercuts the rights of married same-sex couples. Today’s abnegation by the nation’s highest court opens the door for an onslaught of challenges to the rights of LGBTQ people at every step.

Discussion of this case has dominated the LGBTQ-centric news headlines today as the high court begins arguments on another case that could have longstanding impact on the future of LGBTQ civil rights.

Colorado & Public Accommodation

In the original 2013 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. He did this before they’d even selected a cake, let alone asked him to design it. This is important for a myriad of reasons that are certain to come up during oral arguments.

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.

They were denied up front, before even being allowed to select any product – off-the-shelf, specially designed, or otherwise, due exclusively to being a same-sex couple seeking a cake to celebrate their wedding.

Because of that, the Colorado Civil Rights Commission found they violated state law prohibiting discrimination based on protected class (of which sexual orientation is one of several protected categories along with race, religion, nationality, etc.).

During the course of the proceedings, Phillips openly admitted he had similarly turned away other same-sex couples based on his policy. “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,” Sara R. Neel, staff attorney with the ACLU of Colorado, argued during the original hearing.

Given the Trump administration has filed a brief in favor of discrimination against LGBTQ couples, and given the decision not to hear arguments in a similar case involving existing law protecting LGBTQ rights, it’s hard to tell how the Supreme Court will approach this case.

Since he’s better versed on these things as a civil rights attorney, here’s Freedom From Religion Foundation (FFRF) attorney Andrew Seidel’s take on this week’s oral arguments:

Here’s what really happened. The couple went into the bakery. They were not there long before the baker realized they were a gay couple. At that point, the baker refused to serve them. The refusal was not because of what they wanted on their cake—they never even discussed the design—but only because they were gay. It was only later on, after the case had commenced, that the baker said he would sell them a bland, undecorated cake. (From a legal standpoint, even if that were factually true, we settled the whole separate is equal stupidity a few decades ago.)

For all the baker knew, the couple wanted a plain, three-tiered white cake or a cake with the word “Congratulations.” There is nothing inherently different about a gay wedding cake. Gay wedding cakes more often than not look exactly like heterosexual wedding cakes. The baker did not turn them away because they wanted him to say, “I love the gays,” he turned them away because they were gay. That’s it. He didn’t have any idea what they wanted their cake to look like. He discriminated against them because they were gay.

He goes on to add:

The facts laid out above cut the legs from under any argument that the bakery was forced to speak in a certain way. The free speech/forced speech argument is seductive, who wants to say something they don’t agree with. But it is irrelevant because, even assuming cakes are speech, the couple never got the chance to ask him to “say” anything.

Additionally, this is a business—a bakery— and more specifically, it’s a place of public accommodation. Businesses are required to speak in certain ways all the time. Warning labels on alcohol and tobacco, ingredient labels, calorie counts on labels, posting of job regulations in the place of business, hand washing signs posted in business bathrooms, equal opportunity notices — the list is endless. This is not an artist creating, it is a business selling a product to the public and refusing to sell that product to people he doesn’t like. And even if the case were about an artist, remember, he didn’t know what decorations the couple wanted on their cake.

Getting to the heart of what will most likely be Masterpiece Cakeshop’s argument for their case, Seidel explains:

The central question on religious freedom is this: Does having a particular belief give someone the right to act on that belief, simply because the belief is religious, no matter what its impact on others?

In the amicus brief I helped write, we explained that the right to believe and the right to act are distinct. The First Amendment’s protection of religion “has always been understood as the right to unfettered thought — freedom to believe whatever religion we choose, or none at all, without government interference of any kind. But the right to believe as we choose has never encompassed a right to act as we choose. Never has a citizen’s right to the free exercise of religion under the First Amendment — let alone a corporation’s — been understood to include the ability to engage in conduct that infringes on the rights of others.”

This distinction is crucial because the freedom to believe is absolute, the but freedom to act is not. As we pointed out in our brief, this distinction is embodied in the very text of the First Amendment itself: “‘Congress shall make no law . . . prohibiting the free exercise’ of religion. Though it may not be prohibited, free exercise can be burdened, encumbered, hampered, impeded, strained, hindered, and obstructed — and can certainly be burdened when it infringes the rights of others.”

As we’ve explained here on several occasions, having a constitutionally protected religious belief and acting on it (to the detriment of another human being) are not the same thing. While existing law protects belief without question, it does not offer blanket protection to all religiously motivated actions – especially those actions which have the effect of harming the rights of entire groups of people.

Seidel makes a few other important and pertinent points about the case in his article (all of which are worth reading).

Suffice to say, the road ahead for LGBTQ rights is dark and uncertain, but not without hope.

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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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