When the Supreme Court hears oral arguments Tuesday about what most people presume to be a case about a baker and LGBTQ discrimination, what they will really be hearing is an attempt to open the floodgates to a sustained, across-the-board assault on anti-discrimination laws.
"The consequences are limitless," ACLU lawyer Ria Tabacco Mar said of the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.
Mar and other LGBTQ advocates issued the dire warning last week during a phone call with reporters intended to raise awareness about the stakes in a case they fear is getting lost in the shuffle of a frenetic media landscape fueled by the 24/7 chaos enveloping the U.S. government.
The case aims to pit the religious speech rights of Colorado baker Jack Phillips against the rights of Charlie Craig and David Mullins to live free from discrimination as gay men. In 2013, the state Civil Rights Commission found that Phillips, a conservative Christian, had unlawfully discriminated against Craig and Mullins by refusing to bake a cake for their wedding. But civil rights advocates fear the case is largely misunderstood as being solely about LGBTQ rights when a loss at the Supreme Court could fundamentally alter civil rights law in this country.
"If the Court carves out a broad exemption in nondiscrimination laws for so-called 'creative enterprises,' we could see an explosion of discrimination by restaurants, hair salons, event venues, funeral parlors, and more,” said Ineke Mushovic, executive director of the Movement Advancement Project (MAP). “And the impact of such a decision wouldn't be limited to LGBT people; it could be used to allow discrimination against people of color, women, minority faiths, people with disabilities, and others."
The “creative expression” of Phillips is what the plaintiffs have built their case around. They claim that Phillips is an artist, not simply a business owner, and that compelling him to bake a cake for an occasion that runs counter to his religious beliefs violates his First Amendment free speech rights.
The plaintiffs and their allies, who include Attorney General Jeff Sessions and the Justice Department under his command, are framing the case in narrow terms: it’s not about all businesses, it’s just about people who create custom expressive works in the course of doing business.
In other words, the long-standing precedent that public accommodations can’t deny service to certain customers only applies to the sale of dispassionate products, like pre-made goods and services.
The Justice Department brief in support of the baker argues:
Most businesses, even those that provide services related to expressive events such as weddings, cannot show that they engage in protected expression. Thus, a commercial banquet hall may not refuse to rent its facilities, nor may a car service refuse to provide limousines, nor may a hotel refuse to offer rooms, nor may an event service refuse to rent chairs. Such products or services—a hall, a limousine, a hotel room, or a chair—are not inherently communicative.
Sessions and his deputies, like the plaintiffs, don’t want this case to be viewed by today’s Supreme Court justices as a sweeping overhaul to the civil rights-era precedents that gave the nation a new moral compass on racial justice. They instead want the scope of the case to be limited by both who can claim the exemption to nondiscrimination laws (those who sell expressive works), and who can be harmed by it—LGBTQ Americans, in particular.
In fact, Justice Department lawyers argue that the standard of protected expression they are advancing in this case involving two gay men might not actually succeed in a racial bias context.
In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny. As the Court recently observed, “racial bias” is “a familiar and recurring evil” that poses “unique historical, constitutional, and institutional con- cerns.”
In other words, don’t worry, we don’t think Phillips can discriminate against an interracial couple—that’s settled law. We just want him to be able to discriminate against a same-sex couple.
But their argument that this is just a pin prick in the greater sphere of civil rights law is a ruse. After all, a pin prick still ultimately shrivels the entire balloon—and that’s exactly what civil rights advocates are warning about.
"We cannot be allowing for private companies to circumvent anti-discrimination laws in the name of religion," Vanita Gupta, former head of the Justice Department's Civil Rights Division and current president of the Leadership Conference on Civil and Human Rights, told Daily Kos. "That would create a very different fabric around civil rights protections for everyone in this country."
As two experts in civil rights law observed at Slate last week:
If the court finds a religious right to discriminate against gay people, how will it forestall a religious right to discriminate against racial minorities? At a time when our president sees “very fine people” at a white supremacist rally, we can all but assume such cases will arise. The government’s brief implicitly acknowledges this prospect when it says that racial civil-rights laws “may” survive an analogous constitutional challenge.
This is exactly what LGBTQ advocates fear. While it’s true that nondiscrimination protections for queer Americans are still an evolving area of civil rights law, rolling backward rather forward on nondiscrimination protections would necessarily put the entire body of jurisprudence in jeopardy.
Mar noted that a loss at the Supreme Court level would “embolden” challenges in other areas beyond goods and services, such as employment and housing. It would also open up a new front on other kinds of discrimination. A hair stylist might refuse to cut a Latina woman’s hair because they oppose immigration, for instance.
In fact, LGBTQ advocates said the current political climate was part of what made the stakes in the Masterpiece Cakeshop case so high.
Sarah Warbelow, legal director at the Human Rights Campaign, was particularly concerned about the backlash for religious minorities. What about a caterer who didn’t want to provide lunch at a bar mitzvah, or a baker refusing to provide a cake for a Muslim wedding?
“People aren’t really talking about the intensity of the desire to discriminate against people based on religion,” Warbelow noted.