Bakers Gonna Hate, Hate, Hate…
My phone lit up like a Christmas tree when the U.S. Supreme Court issued its ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the closely watched case of a Colorado baker who refused to provide a cake for a same-sex couple’s wedding reception.
The owner of Masterpiece Cakeshop claimed his confections are an “expressive statement” and that he was opposed to same-sex marriage on religious grounds. Thus, forcing him to provide a cake for a same-sex wedding reception would violate his First Amendment rights of freedom of speech and freedom of religion.
Importantly, the Court did not concur with the baker’s logic but nevertheless decided the case in his favor. The 7–2 vote was lopsided — with two liberal justices joining the majority — but the written opinion was narrowly focused on the baker’s treatment by the Colorado Civil Rights Commission (CRC) — the first government agency to declare his business practices illegally discriminatory.
The CRC’s investigations found Masterpiece Cakeshop had a long history of refusing to provide baked goods for same-sex weddings and commitment ceremonies. But, the Supreme Court found the CRC was “hostile” to the baker’s religious beliefs when it ruled he had violated the Colorado Anti-Discrimination Act barring discrimination in public accommodation on the basis of sexual orientation.
In the Court’s view, when the CDC found against Masterpiece Cakeshop it violated the principle that government agencies should be neutral toward religion when applying the law. That lack of neutrality toward religion formed the basis of the Court’s finding in favor of Masterpiece Cakeshop, reversing several lower court decisions.
By focusing on the baker’s treatment by the CRC, the Court punted on the larger (and thornier) question of whether individual religious beliefs can ever serve as an exemption from non-discrimination laws — with obvious implications for all other protected classes routinely protected by such laws (race, ethnicity, disability, etc.)
That ‘punt’ was a relief to national LGBT-rights organizations that feared the Court’s conservatives would jump at the chance to gut a half-century of civil rights law and legal precedent. When the decision was announced, these organizations scrambled to assure their constituencies that the decision was “not as bad as it could be” — a sure sign that LGBT rights had taken a step backward from the Court’s 2015 Obergefell v. Hodges decision legalizing same-sex marriages.
To be fair, the Masterpiece decision did throw some unexpected bones to the LGBT-rights crowd:
- Gay people have civil rights that must be respected: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
- Gay people may be a “protected class” under non-discrimination laws: “It is unexceptional 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.”
- Religious beliefs do not exempt one from non-discrimination laws: “[W]hile…religious and philosophical objections are protected, it is a general rule that such 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.”
Despite these words, the Masterpiece decision may do long term harm to LGBT equality and civil rights in the U.S.
First, the language and logic of the Masterpiece opinion implies that mere lack of “respect” for a business owner’s religious beliefs — no matter how odious or retrograde — nullifies even an admitted and well-documented history of illegal denial of services to lesbian and gay customers.
This argument elevates business owners’ religious beliefs above gay and lesbian citizen’s right to equal treatment in the marketplace. It’s a significant expansion of religious freedom rights and a serious set-back for LGBT rights. It’s a win for conservatives seeking blanket religious exemption from non-discrimination laws.
The beliefs of Masterpiece Cakeshop’s owner — religious or otherwise — should be irrelevant to determining if his business practices were discriminatory. Similarly, any hostility toward religion allegedly shown by the Colorado Civil Rights Commission should not automatically insulate Masterpiece Cakeshop from the legal consequences of its owner’s refusal to provide goods and services.
It’s possible to engage in illegal activity and be a victim of government hostility. The latter does not cancel out the former.
Importantly, the Court’s written opinion in Masterpiece does not show that the CRC’s attitude toward the religious beliefs of Masterpiece’s owner in any way tainted their evaluation of his business practices under Colorado law.
In fact, the CRC’s decision against Masterpiece was upheld by several other judicial bodies before reaching the U.S. Supreme Court.
But even if the Court felt the CRC had erred in deciding against Masterpiece Cakeshop, it should have remanded the case for reconsideration by that commission rather than deciding in favor of the appellant — as would normally be the case.
Second, the Court inexplicably interpreted factual statements about religion as a form of “hostility” to religious beliefs. The SCOTUS decision quotes one member of the CRC as saying,
“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination.”
This is a demonstrably factual statement about the historical use of religion to justify discrimination, but it was presented by the Court as evidence of the CRC’s “hostility” and lack of “respect” for the religious beliefs of Masterpiece Cakeshop’s owner.
This framing (of factual description as prejudice) partakes in a narrative common among Christian conservatives: that they are the aggrieved “victims” of religious “discrimination” often trotted out when they encounter (a) political resistance to attempts to install their religious beliefs into law or policy; (b) religiously-neutral or -inclusive shifts in cultural norms (such as corporate substitutions of “Happy Holidays!” for “Merry Christmas!”); or, (c) any other action or language that threatens to diminish their political power or cultural hegemony.
When statements of well-established and indisputable facts about religion are interpreted by the courts as government “hostility” toward religion, free speech rights are curtailed and religious tyranny is on the horizon. That does not bode well for the civil rights of women, people of color, and gender and sexual minorities.
Third, despite the opinion’s claims, civil rights protections for LGBT people are not “unexceptional.” In fact, quite the opposite.
Currently only 21 states and the District of Columbia have laws prohibiting discrimination in public accommodations on the basis of sexual orientation and gender identity. (Two other states protect only sexual orientation).
Given the recency and unevenness of LGBT civil rights protections in the U.S., courts have a duty to exercise exceptional care in cases alleging violations of those rights. The full extent and scope of those rights are still being fleshed out.
Despite the opinion’s assertion of the inherent worth and dignity of gays and lesbians, in Masterpiece their fragile right of equal access to public accommodations has been newly subordinated to an admitted bigot’s right to have his religious beliefs “respected.” Not his right to practice religion or hold religious beliefs. His right to have those beliefs and practices “respected.”
Fourth, in its finding of government “hostility” to the religious beliefs of Masterpiece Cakeshop’s owner, the Court conflated identity and speech. After the CRC found Masterpiece Cakeshop had violated Colorado’s non-discrimination law, conservative activists sought to muddy the legal waters by purchasing cakes with anti-gay language from other Colorado bakeries.
They were refused.
Unlike its finding in the initial complaint against Masterpiece Cakeshop, the Colorado Civil Rights Commission found these other bakers’ actions did not violate the state’s non-discrimination law. However, the Supreme Court cited this disparity as further evidence of the Commission’s “hostility” toward religion.
But, as Justices Ginsberg and Sotomayor argued in their dissent to the Masterpiece, this is an apples and oranges comparison.
The same-sex couple who brought the original complaint against Masterpiece Cakeshop never had the opportunity to discuss details of their wedding cake — including any decorations or language — before they were refused service due to their sexual orientation.
In other words, they were refused on the basis of their identity where other bakeries refused service arguing that forcing them to create cakes with homophobic language would violate their free speech rights. These circumstances differ considerably.
By conflating issues of identity and speech in Masterpiece, the Court perpetuated a pattern of legal thinking long used to deny civil rights to sexual minorities. That pattern treats the mere fact of a sexual minority identity as a kind of speech act.
And that equation of identity with speech underpins a wide range of homophobic treatment, from the classic “don’t shove it down our throats” response to a gay person’s coming out, to the so-called “gay panic” legal defense, in which the mere existence of a homosexual is seen as sufficiently provocative and threatening to justify their murder (and exonerate their murderer).
Sadly, that “defense” is not a relic of the past…
No other protected class of persons under state or federal anti-discrimination law — no race, ethnicity, sex, gender, creed, physical ability, etc. — is treated as though their identities function as a form of speech. The Court’s perpetuation of this inherently flawed logic undermines LGBT civil rights and licenses violence by those who view LGBT existence as tantamount to an offensive form of speech that must be silenced through social marginalization or violent erasure.
Last, all these little gifts to anti-gay conservatives will be cited as legal precedent by lower courts deciding civil rights cases for years to come. And those courts are increasingly packed with conservative judges appointed by Trump.
Social, political and religious conservatives know demographics are not on their side. Their current hold on power has been achieved by purchasing elections, gerrymandering electoral districts, and exploiting an undemocratic electoral college system.
But that can’t last forever.
Arguably, the political class is already out of ideological alignment with the electorate. As courts redraw gerrymandered districts and reverse voter suppression efforts, and its base of older, white Southern voters shrinks, conservative political power will inevitably decline.
In the short term, that shift won’t happen through the action of (conservative) politicians, who seem more interested in preserving their hold on power than ensuring America is a democracy.
Thus, the courts are the more likely place LGBT social, economic, and political equality will be achieved …unless the courts are packed with conservatives committed to perpetuating conservative political power.
And that’s where the Masterpiece decision is likely to have the greatest impact: in regressive legal arguments aimed at marginalizing those groups historically excluded from the public square and American civic life.
In Masterpiece, the Court missed an opportunity to establish a legal precedent on public accommodations discrimination against gay and lesbian Americans. Despite some affirming language, the decision failed to forcefully assert LGBT rights to equally access public accommodations regardless of a business owner’s personal religious beliefs. In fact, “respect” for those beliefs have now been elevated above the right to equal treatment in the marketplace for goods and services.
Expect that new precedent to be gleefully exploited by opponents of non-discrimination protections, with harmful effects for all those who have been historically marginalized in American society.
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Michael J. Murphy, PhD, is Associate Professor of Gender & Sexuality Studies at the University of Illinois Springfield. He is the author of many book chapters, and encyclopedia and journal articles. Most recently, he edited Living Out Loud: An Introduction to LGBTQ History, Society, and Culture (New York: Routledge, 2019). He tweets @emjaymurphee.