Now that the dust has somewhat settled on the Masterpiece Cakeshop (“MC”) Supreme Court decision, I thought I would follow up with a discussion of what actually happened (as promised). I will do my best to incorporate varying perspectives on this issue, as there has been heated commentary and headlines on all sides. For those of you who didn’t really follow the case, I encourage you to watch my background video to understand the basics of the case here: here.
First, I will say that in any lawsuit, there are going to be very smart, strong and compelling arguments on both sides. Lawyers arguing before the Supreme Court are not new to the game. The MC hearing was very technical and involved pretty complicated constitutional arguments. Even as an LGBTQ+ lawyer, I feel that the baker’s attorneys made certain constitutional arguments that did a good job of avoiding painting the baker as an LGBT hater. That is what smart lawyers do – make their case in whatever way possible to win and appeal to the judges.
As an LGBTQ+ blogger, I am of course biased toward my causes. This is true of most LGBTQ+ organizations and lawyers who have commented on the case. Similarly, those in support of the baker and religious rights will be equally biased toward their causes. In the wake of the MC decision, I read extreme commentary on both ends (especially right after the decision was announced.) I feel that this made it hard for the public to understand exactly what happened. As a lawyer, and through this blog, my mission is to explain how the law applies to LGBTQ+ people fairly and rationally. Some may have felt that my “calmness” was trivializing the ruling, which people were rightfully angry about. That’s just who I am – I don’t think anger is productive. My tone about this case is simply what I would want to hear as a follower – the facts, with no drama, politics, or bias. There was no disrespect to people who were upset about the outcome.
Here is what happened in simplified form. The baker had a business open to the public and denied baking a cake for the gay couple. Colorado has a law protecting gay people when buying goods or services, saying they should be treated like anyone else. This is awesome and very legal. At the same time, America’s Constitution has a free exercise clause, which applies to states, saying that states cannot make laws blocking the free exercise of religion. Therefore, Colorado’s anti-discrimination law is solid, unless it starts blocking the free exercise of religion. Colorado’s courts decided that the baker was discriminating against the gay couple. The baker appealed to the Supreme Court of the U.S. On Monday, the Supreme Court found that Colorado’s judges were biased against religion, based on some extreme statements they made during the baker’s hearing. Therefore, Colorado violated the free exercise clause and the baker is off the hook in this case. That is absolutely all this ruling meant. There was no change to any law and the court did not create a license to discriminate. They basically said Colorado was biased.
By deciding the case this way, the Supreme Court avoided every major constitutional issue at stake. In law, that is called a narrow ruling. One of my followers asked how the ruling was narrow since it was a “7-2” decision. “Narrow,” in MC, refers to the scope of issues decided, not the votes of the court. If you remember, the arguments in this case were very vast. Both sides discussed whether a wedding cake should be viewed as art, and a form of speech protecting by the First Amendment. They argued whether this issue was unique to the context of the wedding industry, or if they would perhaps make a ruling about all businesses. The idea was, the Court had the power to say no public business can turn away LGBTQ+ customers period. Or, they could rule the opposite and say every business has the right to reject LGBTQ+ customers for religious reasons. They also could have ruled anywhere in the middle – something like, in the wedding industry, where religion is uniquely involved in the sale of goods and services, businesses can turn away customers for religious reasons.
The court did none of this, likely because any of those rulings would have been complicated to fully explain. Imagine how hard it would be to think about every possible situation where religion might be used as an excuse to turn away LGBTQ+ customers. Could wedding hairstylists say their styling was art, protected by the First Amendment? Makeup artists? Any ruling would have created sweeping changes to the nation’s laws, businesses, and basically would have created chaos for either side. I’ve been posting about religious exemption laws for a while now. That is an issue at the core of this case. Religious exemption laws (or laws that deny any sort of service or right to LGBTQ+ people) have become particularly popular after same-sex marriage was legalized, with 21 states currently having them in some form. These are being fought in state courts and making their way up the system. Thankfully, major corporations have threatened to leave states who are considering passing religious exemption laws, so that has been helpful to LGBTQ+ rights. However, new attempts at creating these laws are always popping up so this will be a major roadblock to LGBTQ+ rights for some time, until perhaps that broader issue makes it to the Supreme Court for a full decision.
Many LGBTQ+ advocates saw the MC decision as an assault on our rights and progress. Some noted that the MC decision validated a “license to discriminate.” Religious advocates were suddenly emboldened that they could turn any LGBTQ+ people away from their business for any reason. None of this is fully accurate. In fact, the Supreme Court’s opinion confirmed that states can enact their own laws, such as Colorado, to protect LGBT citizens. They just have to apply those laws without bias. With this ruling, now states understand how important impartiality is when applying anti-discrimination laws in cases involving religion. If they do it carefully, the laws will still work fully as intended. In fact, if this WHOLE case happened again, today, Colorado would likely be able to find the baker in violation of their law. The problem is, 31 states in America have NO laws protecting LGBT people from discrimination in public places. Colorado does. If this happened in a state with no protections – which it likely does all the time – we have a bigger problem.
And that’s what I think LGBTQ+ advocates were rightfully angry about. The Supreme Court had an opportunity to do away with that state-by-state system for anti-discrimination, and say that NO state can discriminate against LGBT people in public places period. That’s what they did in 2015 to legalize same-sex marriage. We wanted that again, but didn’t get it. That is disappointing. However, the baker and religious rights advocates didn’t get what they wanted either. The Court said the baker, in this one case, is off the hook. They didn’t make any ruling about anything further. There will be repercussions from this case, no doubt, but not because of any new laws. The repercussions will be from people’s false interpretations about the scope of this case, which is very narrow.
One of my followers notes, we should be mad because this is a slippery slope and signals that it is OK to discriminate against gay people. That is a very real and valid concern. All I can say is that the laws this week are the same as the laws last week. There will likely be more instances of discrimination because of this case, but if they occur in a state with anti-discrimination laws, LGBTQ+ people can use the courts to protect themselves. If they occur in states without laws, well, we had a lot of work and progress to accomplish for acceptance in those states anyway. Let’s not get angry or sad, but let’s double up our efforts and support organizations, politicians, lawmakers, companies, and even celebrities and influencers advancing our rights. Literally hundreds of major companies and celebrities (especially those involved in the food industry) submitted Supreme Court briefs in support of LGBTQ+ people in the MC case. Those matter, and with time, that support will be so overwhelming that cases like this will not be an issue for future generations.
One of my followers made the very popular comment, “it’s just a cake.” Others have questioned why this couple didn’t just support a less bigoted business owner? To that, I will say, yes – it started as just a cake. And I bet this couple did find a cake for their wedding. The reason this is such a big deal is it made it to the Supreme Court, who suddenly was deciding a major issue impacting LGBTQ+ rights. They could have changed the law for or against or favor, just like they did with gay marriage. So, that’s why this cake is now such a big deal.
The full text of the Supreme Court decision is here: https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf. I am happy to answer any questions and engage in further discussion about the case. Please respond in the comments or shoot me a message.
I also think some people will appreciate reading the LGBT-affirming quotes from the decision. While these are not binding precedent or law, they do have impact and show that the court was clear in having no intention to create a license to discriminate:
(1) “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
(2) “The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
(3) “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.”
(4) “[P]urveyors 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.’ ”
(5) “Gay persons may be spared from “indignities when they seek goods and services in an open market.”