THLA’s Response to the Decision in Masterpiece Cakeshop

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Yesterday, in a 7-2 decision, the Supreme Court of the United States issued its decision in Masterpiece Cakeshop, a case addressing a Colorado baker’s refusal to make a wedding cake for Charlie Craig and David Mullins, a same-sex couple in Colorado.  Justice Anthony Kennedy wrote the majority opinion and the Court narrowly ruled in favor of the baker based on the unique facts in the case.  While THLA certainly wanted a different result, the case itself does not provide a broad license to discriminate against LGBTQ people.  Rather, the Court determined that the Colorado Civil Rights Commission, the agency that reviewed the discrimination claim, did not act in a neutral manner when considering the baker’s religious beliefs and objections.  Based on what the Court viewed as the agency’s “hostility” to the baker’s religious beliefs—including statements seen as comparing the baker’s beliefs to slavery and the holocaust—the Court held that the Commission’s actions were “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”  Kennedy Majority Opinion pp. 13, 18. 

However, it is noteworthy that in the majority opinion, the Court also addressed the importance of protecting the civil rights of LGBTQ people:

“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…it is a general rule that such objections [to same-sex marriage] 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.” Kennedy Majority Opinion p. 9.

In her dissenting opinion, Justice Ruth Bader Ginsburg further affirmed these legal protections: 

“There is much in the Court’s opinion with which I agree.  It 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. Ante, at 9.  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. Ante, at 10. Purveyors of goods and services who object to gay marriages for moral and religious reasons may not put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ Ante, at 12. [And] gay persons may be spared from indignities when they seek goods and services in an open market. Ante, at 18.”  Ginsburg Dissenting Opinion p. 1.

Ultimately, the case provides yet another example that our work for full LGBTQ equality is not done.  On this Election Day, we hope that THLA members vote for candidates who support LGBTQ equality and continue to engage and be visible within our LGBTQ legal community.   As Harvey Milk said “hope will never be silent” and we must continue to speak up and speak out.

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