The Icing on the Discrimination Cake

By | July 7, 2017

On the final day of its session, the Supreme Court agreed to hear the case of Colorado baker Jack Phillips, who refuses to make cakes for same-sex weddings on the basis of his “religious beliefs.” Unfortunately, we are going to have to wait to see if “religious freedom” includes the freedom to discriminate as the case likely won’t be argued until late in the next session, which begins in October.

The case has slowly progressed since David Mullens and Charlie Craig sued the owner of Masterpiece Cakeshop for discrimination when Phillips refused to bake them a wedding cake because of their same-sex status back in 2012. The state courts agreed with the couple, stating Phillips violated Colorado’s public-accommodations law, which prohibits service refusal on the grounds of things like race, sex, marital status and sexual orientation.

While Phillips’ lawyers more recently argued his refusal is more about not forcing an artist to create art that goes against his personal inspiration, Phillips himself initially stated it was based on the fact that baking cakes for same-sex weddings was against his religious beliefs. In fact, he decided that rather than risk having to bake a cake for a same-sex wedding, he no longer makes wedding cakes at all.

The Supreme Court agreement to hear arguments in the Colorado case has the potential to settle several disputes currently embroiled in the legal system from more than one state. There have been several cases, including those that involve other bakers, calligraphers and photographers, that have had little success in the lower courts, with rulings along the lines of those in Colorado that mandate businesses must comply with their states’ anti-discriminatory laws. It was earlier this year that the Washington State Supreme Court ruled unanimously that a florist, Barronelle Stutzman, broke the state’s anti-discrimination laws; Stutzman’s lawyers vowed to ask the Supreme Court to overturn the decision, which now will rest on the Colorado case.

Other state courts have come to the opposite conclusion. A Kentucky appeals court recently upheld a printer’s right to refuse to print shirts promoting a Pride festival, and the Texas Supreme Court heard arguments in March regarding the challenge to Houston’s decision to offer benefits to municipal employees’ same-sex partners in the wake of the Obergefell v Hodges decision that granted same sex marriage rights throughout the country in 2015. The fight is far from over in Texas, as the Texas Supreme Court released its unanimous decision that same-sex couples are not guaranteed spousal benefits and ordered the case back to the trial level. Texas lawmakers also recently signed into law a measure allowing child-welfare agencies to discriminate on the basis of sexual orientation, gender identity, marital status or religion by guaranteeing government funding will not be interrupted for denial of services — including service providers refusing to help patients secure birth control or abortion information.

Many people, including myself, have wondered what newly appointed Supreme Court Justice Neil Gorsuch will bring to the table. Gorsuch, as you recall, is the Republican-appointed justice who was sworn in a controversially long time after the death of Justice Antonin Scalia. Since Gorsuch’s appointment, SCOTUS has ruled in a couple of cases regarding LGBT civil rights. The court sided with LGBT rights in upholding the California ban on conversion therapy for minors — a practice that’s been denounced by a plethora of medical and psychological organizations as fraudulent and dangerous to the patient. Just last month, SCOTUS overturned Arkansas Supreme Court ruling and mandated that states must list married same-sex parents, regardless of biological relation, on birth certificates. According to the ruling, refusal to list both partners in a married same-sex relationship was a denial of those married couples’ “access to the ‘constellation of benefits that the state has linked to marriage,’” quoting the Obergefell decision.

While Gorsuch has agreed with the opinions of the conservative-minded Justices Thomas, Alito and Roberts, the balance of the court is still very similar to when Scalia was a member. SCOTUS is made up of four justice nominated by Democratic presidents, and five by Republicans. However, it is Justice Anthony Kennedy, the moderate Republican appointed by President Ronald Reagan who wrote the majority opinions for Windsor and Obergefell, who is often the swing vote in LGBT-rights cases.

The court’s makeup has not changed with the appointment of Gorsuch, but it is in our best interest to keep our eyes on Kennedy. Rumors have been circulating for weeks that the 80-year-old, now the longest-serving justice, may retire soon. Should he do so in the roughly 1,300 days remaining of the Trump administration, the battle over his seat would be very interesting and important.

While SCOTUS declined to hear the Colorado bakery case in the past, some believe it’s Gorsuch’s presence and Kennedy’s impending retirement that have inclined it to finally hear the case. If recent rulings are taken into account, Gorsuch’s influence may not have enough weight to sway the court’s opinion in favor of Phillips and the right’s frequent assertion that the First Amendment protects the right to discriminate against same-sex couples based on religious beliefs. If this happens, the question of religious freedom-to-discriminate laws is answered and Kennedy will save us once again.

(As seen in Philadelphia Gay News | The Icing on the Discrimination Cake)

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