GLAA disagrees with the Supreme Court’s June 4 decision in the Masterpiece Cakeshop case, which overturned a lower court ruling and upheld a baker’s right to refuse to bake a wedding cake for a gay couple. That the ruling is on narrow procedural grounds gives us some comfort in that it could have been much worse, but we have concerns to address.
James Esseks, Director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project, provides a good summary:
“In the Masterpiece Cakeshop case, the Supreme Court on Monday ruled for a bakery that had refused to sell a wedding cake to a same-sex couple. It did so on grounds that are specific to this particular case and will have little to no applicability to future cases. The opinion is full of reaffirmations of our country’s longstanding rule that states can bar businesses that are open to the public from turning customers away because of who they are.”
As Esseks writes, “Monday’s decision gives a very narrow victory to the bakery. But the court has clearly signaled that the broader rule the bakery was seeking here — a constitutional right to discriminate and turn customers away because of who they are — is not in keeping with American constitutional tradition.”
We agree with Esseks that “Congress should pass the Equality Act, which would update our civil rights laws to provide all people with full protection from discrimination.”
Justice Anthony Kennedy, writing the majority opinion for the Court, quotes one Colorado human rights commissioner as saying, “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we-we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me, it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The Court is appalled by this statement, but it is true. And pointing out the truth about faith-based discrimination does not turn the discriminators into victims
We as a movement have long faced the dishonesty of Christian supremacists who, despite their years of aggressive bullying and attacks on others including gays and religious minorities, insist on portraying themselves as victims. Their pose of fragility and of being under siege is baseless. There is no well-organized and well-funded effort to legalize denial of service to Christians by businesses, for example. What the supremacists really object to is LGBTQ people and others defending themselves against religious supremacists’ bigotry. Objecting to those who rationalize their homophobia and transphobia as religious liberty is no more an attack on Christians than objecting to racist policing is an attack on all police. LGBTQ people embrace a diversity of religious beliefs and traditions – and some in our community would argue that their deeply held religious convictions are being violated by allowing these religious supremacists to circumvent laws designed to protect the rights of all.
Justice Ginsburg writes in her dissent, “I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decision making, of which the Commission was but one.”
Ginsburg writes, “The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer.”
Ginsburg writes, “Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it.”
That said, the majority opinion gives little help to those who would like to make this narrow procedural ruling into a broader precedent.
Justice Kennedy conceded that “any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.”
Kennedy writes, “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason, the laws and the Constitution can, and in some instances must protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
We take comfort in Kennedy’s statement: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
That being said, Justice Kennedy, after writing five gay-related opinions for the Court, still has not addressed the question of whether homosexuals are a suspect class. This limits the value to future litigants of his opinions for the Court.
As to faith-based discrimination, we wish to stress that we have defended the free speech rights of our religious opponents over and over again, from marriage equality opponents advertising on Metrobuses to the anti-gay owner of the Museum of the Bible to a Chick-fil-A outlet opening in the District. We have done so knowing our tolerance would not be reciprocated. But for a business open to the public to deny service on religious grounds risks undermining the social contract whereby members of a diverse society put up with one another’s differences for the common good.
People of many faiths and no faith must respect one another, and resist imposing their faith dictates on one another in the public square, in order to preserve social cohesion, peace, and the general welfare. Respect that works only in one direction is not respect at all but subjugation. A dispassionate review of efforts by Christian supremacists to defend faith-based discrimination reveals those efforts as a back-door attempt to deny protection to LGBTQ people and our families. So our struggle continues.