Will Supreme Court Allow Businesses to Not Serve the LGBTQ Community?

This week the U. S. Supreme Court announced that in the fall it will hear the case “Masterpiece Cakeshop v. Colorado Civil Rights Commission.” The case – which will have many of us LGBTQ Americans on pins and needles – will argue the parameters of one’s right to practice their religion and their right to express themselves freely that’s enshrined in the First Amendment.

In 2012, gay couple David Mullins and Charlie Craig wanted to order a cake for their upcoming wedding reception. With plans to marry in Massachusetts, because same-sex marriage wasn’t legalized in Colorado until 2014, the couple decided to celebrate their nuptials back home. Jack Phillips, owner to Masterpiece Cakeshop informed the couple it was his “standard business practice to refuse to provide cakes for same-sex weddings” because of his long-standing religious convictions as a Christian.

“We do a variety of cakes. We do birthday cakes and shower cakes…. We don’t do Halloween cakes and adult-themed cakes,” Phillips stated in New York Times YouTube.

Many conservatives in Phillips’s camp will argue that his position is not a repudiation on same-sex marriage but rather it’s a principled stance to fight for free expression unfettered by the tyranny of political correctness.

“We at Cato have long supported both religious liberty and gay rights, insofar as the agenda of each is consistent with the liberty of unlimited constitutional government,” Roger Pilon, founding director of the Cato Center for Constitutional Studies, said. “But we draw the line when same-sex couples turn around and use government to force venues against their religious beliefs to participate in same-sex ceremonies, as happens too often today.”

Oddly, however, when the argument is framed as Pilon states there’s no room to ensure that LGBTQs will not be discriminated against because of who we are and who we love. And I’m not certain that this government has our back.

As a matter-of-fact, since Trump has taken office I’ve worried about the erosion of LGBTQ civil rights. For me, it began in February when his administration revoked federal guidelines permitting transgender students from using facilities that aligned with their gender identity. This June Trump paid tribute to the 49 LGBTQ victims of last year’s Pulse Nightclub massacre, but failed to issue a proclamation for Pride Month

I am immensely thankful as a married lesbian that I reside in Massachusetts, especially if Trump tries to overturn “Obergefell v. Hodges,” the historic U.S. Supreme Court ruling that legalized same-sex marriage in all 50 states. With Trump having potentially three Supreme Court seats to fill with Antonin Scalia-like justices I can exhale knowing that Massachusetts Supreme Judicial Court legalized same- sex marriage in the 2004 “Goodridge v. Dept. of Public Health” landmark case, and it’s sticking.

However, that may not be the case for many LGBTQ married couples outside of Massachusetts. For example, in a Trumped-up Supreme Court there is talk among Christian evangelicals of walking “Obergefell v. Hodges” back without disrupting other precedent on marriage,” Rebecca Buckwaler-Poza wrote in the article “The End of Gay Rights” in the June issue of Pacific Standard Magazine.

“The Supreme Court can significantly undermine LGBT rights even without reversing a single case. Right now, the federal prohibition against sex discrimination doesn’t bar discrimination on the basis of sexual orientation or gender identity; the Equal Protection Clause affords no specific protections for LGBT people, as it does for members of groups defined by race or nationality. “The Court can strip the rights to intimacy and marriage of their meaning, carving away gradually and masking the magnitude of changes by phrasing them in arcane legal terms.”

A movement for some time now has been afoot in state legislatures across the country to disenfranchise LGBTQ Americans. These bills are called “Religious Freedom Restoration Acts” (RFRA), but don’t be fooled. These lawmakers are looking to codify LGBTQ and non- Christian discrimination.

Jews, Muslims, Buddhists, and other non-Christians don’t merit protection under RFRA. As a matter-of-fact, these demographic groups—along with atheists and LGBTQs—can easily be subject to egregious forms of discrimination, bigotry and hate crimes under the guise of religion. And RFRA’s claims look like this in justifying denying services, especially to same-sex couples:

A family-owned bakery in Gresham, Oregon called “Sweet Cakes by Melissa” wanted to “practice their Constitutional right to religious freedom.” However, instead of servicing an LGBTQ clientele Sweet Cakes by Melissa closed the family shop and moved the business to their home making it clear LGBTQ dollars are not wanted.

A florist – “Ingersoll v. Arlene’s Flowers and State of Washington v. Arlene’s Flowers” – in Washington State wanted to maintain her “relationship with Jesus” and felt she was forced between choosing a beloved gay patron she had known for years and her faith.

And, a photography company in New Mexico stated it” would “gladly serve gays and lesbians” by taking portraits. However, photographing same-sex marriages or commitment ceremonies would “require them to create expressions conveying messages that conflict with their religious beliefs.”

The “Religious Freedom Restoration Acts” springing up across the country are a backlash to the growing acceptance of same-sex marriage and the growing fear of when the Supreme Court legalize it nationwide. They are a perversion of the Constitution and our history of religious freedom. And Colorado state law prohibits public accommodations, like Masterpiece Cakeshop, from refusing service based on race, gender, marital status, sexual orientation or gender identity.

“What should have been a happy day for us turned into a humiliating and dehumanizing experience because of the way we were treated,” said Mullins told ACLU Colorado. “No one should ever have to walk into a store and wonder if they will be turned away just because of who they are.”

In further arguing Phillip’s case his lawyers stated in the brief that his client’s faith requires him “to use his artistic talents to promote only messages that align with his religious beliefs,” and that Mullins and Craig could have easily “easily obtained a free wedding cake with a rainbow design from another bakery.”

In the 1960’s a similar message was told to African Americans when we wanted access to public facilities such as water fountains, pools, bathrooms, parks, school, and transportation to name a few.

With Justice Neil Gorsuch newly appointed to the Supreme Court and recent rumors of Justice Anthony Kennedy retiring and Justice Ruth Bader Ginsburg failing to retire during the Obama administration the ideological balance of the Court is at stake in this uber-conservative Trump administration.

Let’s hope in the fall the Supreme Court does the right thing and not codify LGBTQ discrimination, because democracy can only begin when those at the margin can experience what others take for granted.