Discrimination not baked into high court ruling
Hold your horses! Ease off that throttle. Slow it down there, bub.
The U.S. Supreme Court did not legalize discrimination and it did not affirm the right of business owners to turn people away who are gay, lesbian, bisexual or transgender. And the court certainly did not say that the First Amendment allows business owners to ignore state law, including anti-discrimination laws, on the basis of religious beliefs.
Now to be clear, the 7-2 ruling in the Masterpiece Cakeshop v. the Colorado Civil Rights Commission isn’t great news for LGBT people. It’s just not a cataclysm.
First some background. Colorado has a state nondiscrimination law that protects people from discrimination in public accommodations, which includes businesses such as restaurants and bakeries. Maine has a similar law.
The law basically says that if you’re open for business, you have to be open to everyone, regardless of race, sex, religion, sexual orientation or gender identity.
The days of “No Irish Need Apply” or “Whites Only” are over.
In this case, the Colorado Civil Rights Commission ruled that Masterpiece Cakeshop violated the state’s nondiscrimination law when the owners refused to make a wedding cake for a gay couple, David Mullins and Charlie Craig.
Masterpiece Cakeshop’s owners admitted that they had a policy of refusing to make wedding cakes for gay couples, saying that they had a constitutional right to discriminate in violation of state law based on sincerely held religious beliefs and protected free speech.
The Colorado Civil Rights Commission found that Masterpiece Cakeshop had violated the law, an opinion that was upheld by Colorado state courts. The case was appealed to the U.S. Supreme Court, which heard arguments on Dec. 5, 2017.
On Monday, the Supreme Court issued its ruling, reversing the lower courts’ decisions. But the reversal was specific only to this case. The court found that the Colorado Civil Rights Commission had been biased against Masterpiece owner Jack Phillips based on his religious views and that he had not received fair treatment.
The ruling also made clear: “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”
Further, the court found that: “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
After the ruling was released, some members of the religious right started to take a victory lap and some members of the LGBT community started to panic. Both were premature.
With some overly simplistic hot take headlines, it’s easy to see why people might jump to conclusions.
Matt Moonen, the executive director of EqualityMaine, explained the ruling this way: “More than half a century ago, our nation decided that when a business is open to the public, it must be open to all. Not just a policy, this is a fundamental principle at the heart of who we are — and how we treat one another — as Americans. The U.S. Supreme Court today reaffirmed that principle.”
Freedom of religion is one of the foundations of our country and a fundamental right. We are each allowed to worship — or not worship — in our own way. But we are not allowed to use that freedom to force our faith onto others, to harm someone else or to discriminate.
This will not be the Supreme Court’s last case on this subject. In Ingersoll v. Arlene’s Flowers, a Washington state florist refused to sell flowers to a gay couple for their wedding. The state supreme court ruled unanimously against the florist, but the case could well be headed to the U.S. Supreme Court.
And, despite the narrow nature of the ruling this week, I would expect other business owners to test the bounds of just what they can get away with. Expect more LGBT people to face discrimination and more lawsuits.
While we are lucky in Maine to have a strong Human Rights Act that protects people from discrimination, that’s not the case in much of the country.
There are 27 states where people can be fired, denied housing or turned away from a business based on their sexual orientation or gender identity. That’s wrong. And the best way to fix it is for Congress to pass the Equality Act and extend nondiscrimination protections nationally.
David Farmer is a public affairs, political and media consultant in Portland, where he lives with his wife and two children. He was senior adviser to Democrat Mike Michaud’s 2014 campaign for governor.