It Isn't About the Damn Cake

If the Supreme Court rules in favor of the baker who claimed “religious reasons” for refusing to make a wedding cake for a same-sex couple, we're all in trouble.
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If you ever needed to know that elections have consequences and why courts matter, you need only look to the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which the Supreme Court recently agreed to hear. It’s an all-too-familiar tale of a business that doesn’t want to serve LGBTQ people and a Court that now appears eager to help them refuse. And if the Court decides that businesses can refuse to serve LGBTQ people, that opens the door to businesses being able to refuse services to anyone as long as they claim a religious purpose to their discrimination.

This isn’t the first case of this sort by any means. Over the past several years, there has been a spate of cases where businesses—typically companies that provide services for weddings—don’t want to provide those services for same-sex couples. This kind of discrimination is all too familiar in this nation's history: On February 1, 1960, four Black college students in North Carolina protested segregation by sitting at a whites-only lunch counter in Woolworth's, launching a sit-in movement throughout the South. That kind of discrimination, refusing to serve people of color, was legal and done with impunity.

Elane Photography, in New Mexico, refused to photograph a commitment ceremony when a lesbian requested their services. In Washington state, Arlene’s Flowers declined to sell flowers to a gay couple for their wedding. (Special bonus awfulness: Arlene’s had been happy to take money from one half of that gay couple over the years for non-marriage-related flowers, but apparently the wedding thing was a bridge too far.) Vermont’s Wildflower Inn, which bills itself as the “Four Seasons for Everyone!” didn’t really think that “Everyone!” included the lesbian couple that wanted to have a reception there. In downstate Illinois, not one, but two bed-and-breakfasts turned away a gay couple who wanted to hold their civil-union ceremony there after Illinois passed its civil-union law in 2011. And let’s not forget Telescope Media (“We want to magnify Christ like a telescope” is their slogan. Really), the Minnesota video production company that doesn’t want to film gay people, and have gone so far to avoid doing so that they actually preemptively sued so they wouldn’t have to, even though there’d been no requests for them to do so.

Cases like these generally have two key things in common. First, they usually are brought under state, not federal, law, and deal with whether a particular state’s anti-discrimination or human-rights law should be read to prohibit businesses such as these from denying services to same-sex couples. For example, in the Arlene’s Flowers case, the same-sex couple plaintiffs sued under Washington’s law that prohibits discrimination in public accommodations based on sexual orientation. A “public accommodation” in this instance includes any business, such as a florist, that holds itself out as generally available to the public. Public accommodations generally have to be available to everyone, while private personal activities do not. (In other words, if you just think arranging flowers is fun and do it on the side for your friends, feel free to tell whoever you’d like “no” and for whatever reason. But if you want to be a business and participate in commerce, you have to follow the laws of the state.)

Next, almost all of these sorts of cases are brought by an outfit called the Alliance Defending Freedom (ADF), which is a name that makes sense only if you believe the word “freedom” should be read to mean “freedom to discriminate.” ADF, of course, represents Masterpiece Cakeshop, the company at the heart of the new Supreme Court case.

Masterpiece Cakeshop started in 2012, before same-sex marriage was a federal right. Colorado bakery owner Jack Phillips refused to bake a cake for a wedding reception for David Mullins and Charlie Craig, who were getting married in Massachusetts, where same-sex marriage was already legal, but who were holding their reception in Colorado. When Phillips refused, Mullins and Craig brought a complaint under Colorado law because Colorado has an anti-discrimination law that prohibits discrimination on the basis of sexual orientation. They won at the administrative level when their complaint was before the Colorado Civil Rights Division and in the courts when the Colorado Court of Appeals heard the case.

Although, at root, Phillips is a guy who owns a bakery, for purposes of this case he frames himself as a “cake artist” and believes that “decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.” There’s a very particular reason he tries to frame himself this way. Since the First Amendment protects free expression, you generally can’t be compelled to engage in speech you don’t support. If your cake-baking is a message-delivering piece of artistry, then the state can’t make you deliver a message you hate. If your cake-baking is your job in a public accommodation, the state can require you to perform that service for everyone.

The Colorado court didn’t buy the “cake artist” argument and said that (1) the government has a compelling interest in eliminating discrimination and (2) that the state’s anti-discrimination law is designed to prevent businesses from only serving the people they perceive as their own kind because public accommodations need to be available to all residents of the state.

Obviously, the Supreme Court could have taken this case either to uphold Colorado’s finding that Masterpiece Cakeshop discriminated or to find in favor of the bakery, and it is impossible to predict what will happen until a decision is issued later this year or in 2018. However, it doesn’t bode well that the Court took this case now given that three years ago they declined to hear the very similar Elane Photography case and let stand the state court decision that said that denying services to a lesbian couple violated New Mexico’s public accommodations law. Agreeing to hear Masterpiece Cakeshop may mean that the Court now wants an opportunity to radically limit the privileges and rights that LGBTQ people enjoy.

Indeed, newest Justice Neil Gorsuch has already indicated that he won’t look favorably on an expansive view of LGBTQ rights. He dissented from the Court’s opinion in Pavan v. Smith, a case where Arkansas refused to place both names of a female same-sex couple on a birth certificate even though they automatically do so for a male-female couple. Dissenting in that case showed that Gorsuch doesn’t really consider the Court’s landmark same-sex marriage decision, Obergefell v. Hodges, settled law, and that he will make LGBTQ people fight tooth and nail for every possible right.   

At first glance, whether or not a bakery refuses to bake a cake for a same-sex couple doesn’t necessarily seem as terrible, objectively, as those instances where people seek to deny LGBTQ people things like mental-health treatment or, worse still, impose horrifying conversion therapy upon them. However, they all spring from the same discriminatory impulse: the notion, a wholly anti-American one, that you can treat people differently if you don’t agree with who they are. A court decision that says that you can use your religious beliefs as a cudgel to discriminate against LGBTQ people would be devastating. First, doing so enshrines a pernicious bigotry into American law. Next, that bigotry wouldn't be limited to florists and bakers and the like: It would kick open the door to refuse LGBTQ people medical services, education, even funeral services. (Indeed, a Catholic bishop in Illinois has already called upon priests to refuse funeral rites to people in same-sex relationships. Imagine this cruelty being extended to non-religious businesses.) Worse, however, is that it clears a path to allowing "religious" or "moral" grounds of refusal for a host of other things. There are already widespread instances of pharmacists refusing to fill birth control prescriptions, for example. It is easy to see how this could lead to more discrimination against women, people of color, Muslims, and others. 

Back in February, President Donald Trump floated a proposed “religious freedom” executive order that would have allowed both government agencies and closely held for-profit corporations to discriminate against LGBTQ people if their objections to providing services were based on religious beliefs. The version that eventually got signed in May was a bit more anodyne and focused more on contraception and the political speech of religious organizations, but the threat remains. Given that no federal-level anti-discrimination laws exist to protect LGBTQ individulas, the rights of LGBTQ people remain especially fragile, able to be undercut with a single stroke of Trump's pen. Having the right to marry isn't nearly enough.

Had Hillary Clinton prevailed in November, we wouldn’t be facing these threats. There wouldn’t be an executive branch hell-bent on depriving LGBTQ people of their rights and there wouldn’t be an additional homophobe like Gorsuch on the Supreme Court. It is imperative that we keep in mind, for future elections, how incredibly vital the federal courts are at safeguarding the rights of historically marginalized people. Only one political party believes in that vision, however, and they’re not the one in power right now.

 

Lisa Needham is an attorney who has worked in the areas of First Amendment, education, and labor law. She is the deputy editor of Lawyerist, where she writes about access to justice and diversity in the law, and a contributor to Rewire, where she writes about LGBTQ and reproductive-health legal issues. She is ride or die for Dionne Warwick, Doris Day, and the Oxford comma. Follow her: @snipy
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