The Supreme Court just sent a great ruling for gay rights back to Washington state for reconsideration in light of its not-so-great ruling in Masterpiece Cakeshop. It’s essentially procedural, but the choice nonetheless augurs poorly for LGBTQ rights.
Rewire’s Jessica Mason Pieklo sums it up:
No, it’s not a substantive disaster, as the ACLU points out. Washington’s likely to reach the same conclusion once more.
“To be clear, the court made no indication the lower courts ruled incorrectly and made no decision on the case’s merits,” James Esseks, director of ACLU’s LGBT and HIV Project, said in a statement.
“We are confident that the Washington State Supreme Court will rule once again in favor of the same-sex couple, and reaffirm its decision that no business has a right to discriminate. Our work to ensure LGBT equality is the law and the norm in all 50 states will continue.”
But even while the court hasn’t changed any laws or rights, sending Arlene’s Flowers back to Washington tell us that the court’s going to keep weighting discriminatory religious beliefs more heavily when it comes to sexual orientation than other bases for discrimination, such as race or gender. (Can you imagine the Supreme Court sending back an instance of racial discrimination purportedly justified by religious belief?)
That’s demoralizing as hell. A few years ago, it seemed the court might be edging toward finding that LGBTQ people are a protected class under the Equal Protection Clause. But Kennedy, it turns out, isn’t here for that, or probably even for finding that sexual orientation and gender identity are covered by prohibitions against sex discrimination.
Curt Freed and Robert Ingersoll, the same-sex couple against whom Arlene’s Flowers discriminated, issued a statement:
“No one should have to experience the hurt that we did. Curt and I now live our lives on-guard in a way that we didn’t before we were turned away from Arlene’s Flowers. No one should have to experience that, and we’re hopeful the Washington courts will again recognize that this case is clearly about discrimination, which has no place in the public marketplace or in our Constitution.”
The court had an opportunity in Masterpiece, and even with respect to Arlene’s Flowers, to do more than acknowledge that states can protect LGBTQ people. What the court did instead will embolden far-right activists and their base in their quest to create a constitutional right to discriminate via “religious liberty.” Couples like Freed and Ingersoll—and people like me—will face increased rather than decreased discrimination.