The U.S. Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission on December 5, and the ruling, expected in late spring or early summer 2018, could upend civil rights law. At issue is whether the First Amendment’s free speech and free exercise clauses permit a business that is open to the public to refuse service to groups of people, in violation of laws prohibiting discrimination.
In July 2012, Charlie Craig and David Mullins visited Masterpiece Cakeshop in Colorado to buy a wedding cake. Shop owner Jack Phillips refused to sell them a cake when he realized it was for a same-sex couple. The Colorado Civil Rights Commission and state courts agreed that this refusal violated the public accommodations section of the Colorado Anti-Discrimination Act and that the ban on discrimination did not violate the Constitution.
The Supreme Court will decide whether the free speech or free exercise clauses permit a business to discriminate, regardless of civil rights laws. The court could grant an unprecedented license to discriminate, which would lead to the erosion of nondiscrimination protections and setting civil rights back a half-century.
Discrimination by businesses is not protected conduct
This is not the first time that businesses have argued that discrimination should be constitutionally protected; it is not even the first time that the First Amendment has been put forward as a defense. In Hishon v. King and Spalding—a case involving sex discrimination against a female lawyer—the court stated that “invidious private discrimination … has never been accorded affirmative constitutional protections,” rejecting her firm’s claim that the nondiscrimination law violated the First Amendment freedoms of association and expression. The court has also established that a business has no right to select their customers “as it sees fit, free from governmental regulation.” In fact, the court has previously called claims that a nondiscrimination statute interferes with the exercise of religion “patently frivolous.” As retired Supreme Court Justice Sandra Day O’Connor said in 1984, “The Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State.”
Even if nondiscrimination laws burden a constitutional right to some degree, the state has a compelling interest in combatting discrimination that outweighs any infringement. As the court has noted, “Not all burdens on religion are unconstitutional. … The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” When Bob Jones University’s tax exempt status was revoked because it banned interracial dating by students, the court found the government to have a “fundamental, overriding interest in eradicating racial discrimination” that “substantially outweighs” any burden on the university’s religious beliefs. The court has also held that eliminating gender discrimination and “assuring its citizens equal access to publicly available goods and services … serves compelling state interests of the highest order.”
Lawyers for Masterpiece Cakeshop will argue that LGBTQ discrimination is somehow different from racial or gender discrimination, but it is not. U.S. Supreme Court Justice Anthony Kennedy wrote in Romer v. Evans that specifically denying “legal protection from the injuries caused by discrimination” for people based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” amounts to discrimination and is not justified by “legitimate state interests.” The 9th U.S. Circuit Court of Appeals has found a “compelling governmental interest” in the “preservation of the integrity of its antidiscrimination policies,” including those addressing sexual orientation. A survey commissioned by CAP found that one-quarter of LGBTQ respondents reported experiencing discrimination in 2016.
State courts around the country—including in Colorado, New Mexico, and New York—have rejected claims that religion can be used to justify discrimination. Recently, the Washington Supreme Court unanimously rejected a florist’s argument that her faith required an exception to a nondiscrimination law that protects LGBTQ customers. If the U.S. Supreme Court overturns rulings that uphold nondiscrimination protections, the balance that courts have struck would be upset, and nondiscrimination laws around the country would be undermined.
Bending the moral arc of the universe away from justice
The Supreme Court has, until recently, consistently rejected religious freedom exceptions to generally applicable laws, including bans on racial discrimination, polygamy, and drug use. In a 1990 religious liberties case, U.S. Supreme Court Justice Antonin Scalia quoted an 1878 case noting that granting a religious exemption to a law that does not specifically target religion would, in essence, “make the professed doctrines of religious belief superior to the law of the land, and … permit every citizen to become a law unto himself.”
Despite these rulings, anti-LGBTQ rights activists are encouraged, because the Supreme Court has recently expanded the scope of religious liberty protections. In Burwell v. Hobby Lobby, the court recognized religious freedom claims from some for-profit corporations and exempted them from the federal mandate that health insurance cover contraception. Prior to this case, courts had never recognized corporations as having any right to religious freedom.
If arguments put forth by the anti-LGBTQ group Alliance Defending Freedom are accepted, the court’s ruling in Masterpiece Cakeshop could signal a retreat from decades of civil rights progress, ushering in a world where discrimination is again acceptable in hotels, restaurants, schools, colleges, law firms, and labor unions. Furthermore, the possible negative effects extend beyond the LGBTQ community. Once the court recognizes a constitutional right to discriminate, businesses could turn away people of color, single mothers, unmarried cohabitants, Muslims, Jews, interfaith couples, and many others. It is not unreasonable to envision a dystopia where businesses such as Piggie Park, the barbecue restaurant chain that achieved notoriety for refusing black customers, could now seek to relitigate their claims from the 1960s and now argue that operating their business in this manner was expressive conduct that should be exempt from nondiscrimination laws.
The court’s swing vote, Justice Kennedy, has historically sided with those protecting the rights of LGBTQ people and has written all of the court’s rulings in favor of LGBTQ rights. Accepting the arguments of Masterpiece Cakeshop v. Colorado Civil Rights Commission means denying the “equal dignity in the eyes of the law” that Justice Kennedy promised the LGBTQ community in Obergefell v. Hodges. Hopefully he again comes down on the side of freedom, dignity, and equality.
Frank J. Bewkes is a policy analyst for the LGBT Research and Communications Project at the Center for American Progress. Billy Corriher is the deputy director of Legal Progress at the Center.