Any day now, the U.S. Supreme Court will issue a decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The case presents the question of whether a bakery with religious objections to same-sex marriage enjoys a constitutional privilege to refuse the business of a same-sex couple in a state that bans sexual orientation discrimination.
This is not about cake. This case is about whether our nondiscrimination laws can be enforced without sweeping exemptions.
The Facts: Turned Away Because the Were Gay
In 2012, David Mullins and Charlie Craig, accompanied by Charlies’s mother, Debbie, visited Masterpiece Cakeshop, a Denver-area bakery, to order a cake for their wedding reception. Before even discussing the design of the cake, Jack Phillips, the bakery owner, told them he wouldn’t sell them a wedding cake because they were a same-sex couple.
Colorado state law prohibits all public accommodations, including businesses like Masterpiece Cakeshop, from refusing service to anyone based on their sexual orientation. The couple filed a complaint with the Colorado Civil Rights Commission, which found the bakery had violated Colorado law by discriminating against David and Charlie.
The bakery admits that it had a policy of refusing service to gay couples seeking wedding cakes, but argues that it has a constitutional right to discriminate based on religious and free speech grounds. The Colorado state courts rejected this defense, and the bakery sought review of the state ruling by the Supreme Court, which agreed to hear the case.
The argument: A constitutional right to discriminate?
Masterpiece isn’t just arguing that businesses with religious objections should be exempt from nondiscrimination laws; it also argues that commercial businesses that involve some form of creativity should be exempt from nondiscrimination laws on free speech grounds.
Why the bakery is dead wrong and dangerous
Nondiscrimination laws: As a nation, we decided more than a half-century ago that businesses that are open to the public should be open to everyone on the same terms. No business open to the public has a constitutional right to discriminate against a customer based on their religion, gender, race, sexual orientation, or gender identity. Laws like Colorado’s ensure that people previously subject to discrimination can go about their lives without worrying whether they will be turned away from a business simply because of who they are.
Freedom of religion: Religious freedom is one of our most fundamental rights as Americans. But that freedom does not give any of us the right to harm other people. If you have a law of general applicability, there is no constitutional exemption from it.
Freedom of speech and expression: Providing commercial services doesn’t mean a business is endorsing anyone’s marriage, or agreeing with everything the customer believes. It simply means it is providing services to the public, and it is open to everyone on the same terms. Just because an object may be beautiful or handcrafted doesn’t mean that the conduct of creating that product can be exempt from generally applicable laws. Weddings themselves are certainly expressive, but of the couple’s commitment, not those of the bakery, the dress shop, the hair salon, or any other provider. Nobody goes to a wedding and thinks that the bakery, or caterer, or other service provider is endorsing anything about the couple.
How does this Supreme Court case affect the LGBT community?
A loss at the Supreme Court allowing discrimination would have implications reaching far beyond LGBT people. It could also threaten our longstanding protections against discrimination for people of color, women, people with disabilities, religious minorities and others. In short, it could lead to the erosion of federal and state nondiscrimination protections across the country.