The moment is upon us. The Supreme Court has its ninth justice, who is almost certain to side with conservatives in a case weighing whether a private business owner can refuse service to people who he finds morally offensive. That case is appropriately named Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, reflecting the assault of a private business on basic civil rights.
The religious right sees this as a matter of so-called "religious freedom," meaning the right of religious people who hang a sign outside their door saying, "Open for business," to actually exclude certain people they find morally objectionable from their clientele. In this case, those people are David Mullins and Charlie Craig, a gay couple whose wedding reception Jack Phillips declined to bake a cake for in 2012.
For many on the left, we are taken back to a Woolworth's lunch counter in Greensboro, North Carolina, in 1960 and the black civil rights activists who refused to vacate their seats despite being refused service.
The struggles of black Americans for racial equality and of LGBTQ Americans for fundamental freedoms have notable differences to be sure, but many advances in the fight for queer rights have been inspired by the pioneering work of the Civil Right Movement and its legacy of peaceful protest that resulted in landmark cases like 1954's Brown v. Board of Education, in which the Supreme Court declared, "Separate" is "inherently unequal."
In 1964, Congress passed the Civil Rights Act, which prohibits privately owned businesses, otherwise known as places of "public accommodation," from discriminating against people on the basis of race, color, religion or national origin.
The federal statute does not explicitly include "sexual orientation" and "gender identity," though 20 states and the District of Columbia have statutes that do (a couple more states provide "sexual orientation" protections only). Colorado's civil rights statute does indeed protect transgender individuals along with lesbians, gays, and bisexual people.
The case going before the Supreme Court pits Colorado’s civil rights ordinance against First Amendment freedoms. As Scotusblog writes:
Issue: Whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.
But in plain terms, this is a question of whether the Supreme Court will ignore its own declaration that "separate is not equal" assisted by loopholes in a federal statute that does not provide the same protections for gay and transgender Americans that it does for people of varying race, color, religion or national origin.
Just to be clear, Colorado courts have been resolute on this issue, all agreeing that Masterpiece Cakeshop violated the civil rights of Mullins and Craig. First an administrative judge ruled in favor of the gay couple in 2013, then Colorado's Civil Rights Commission affirmed the ruling five months later, a decision later upheld in 2015 by the Colorado Court of Appeals. The Colorado Supreme Court declined to even reconsider the case.
As the Colorado Court of Appeals wrote, the Colorado Anti-Discrimination Act (CADA) makes clear that businesses can't discriminate based on "certain characteristics":
Without CADA, businesses could discriminate against potential patrons based on their sexual orientation. Such discrimination in places of public accommodation has measurable adverse economic effects. See Mich. Dep’t of Civil Rights, Report on LGBT Inclusion Under Michigan Law with Recommendations for Action 74-90 (Jan. 28, 2013), available at http://perma.cc/Q6UL- L3JR (detailing the negative economic effects of anti-gay, lesbian, bisexual, and transgender discrimination in places of public accommodation). CADA creates a hospitable environment for all consumers by preventing discrimination on the basis of certain characteristics, including sexual orientation. In doing so, it prevents the economic and social balkanization prevalent when businesses decide to serve only their own “kind,” and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.
Therefore, CADA’s proscription of sexual orientation discrimination by places of public accommodation is a reasonable regulation that does not offend the Free Exercise Clauses of the First Amendment and article II, section 4.
In finding that the state statute doesn't impinge on First Amendment freedoms, the Colorado appeals court cited a 1966 decision from a district court in South Carolina considering whether the federal Civil Rights Act of 1964 trampled on free exercise of religion.
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This Court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishment upon the ground that to do so would violate his sacred religious beliefs.
Masterpiece admitted that it discriminated against Mullins and Craig precisely because they intended to marry—in other words, because they were gay.
The question before the justices is whether the Supreme Court will grant religious business owners special rights to discriminate against people who are gay. It’s the latest iteration of a question the Supreme Court and lower courts have already considered—it’s just that the characteristics of the group being discriminated against have changed.
The result will almost certainly hinge on whether Justice Anthony Kennedy believes the same people he invested with the fundamental right to marry should also have the fundamental right to live free from discrimination. Finding otherwise will inevitably open up a Pandora’s box of litigation targeting LGBTQ Americans.