Dariely Rodriguez is the director of the Economic Justice Project of the Lawyers’ Committee for Civil Rights Under Law, which submitted an amicus brief in this important case on behalf of a broad coalition of civil rights organizations.
Over the last several decades, public accommodation laws have played a critical role in ensuring that all businesses are open to everyone on a nondiscriminatory basis and that individuals from marginalized communities are not treated like second-class citizens. Despite the advances our country has made in eradicating segregation and other forms of invidious discrimination, African-Americans and other minority communities, including LGBT people of color, continue to suffer from structural and pervasive discrimination, as evidenced by the recent increase in hate crimes across the country. Highly charged incidents at Starbucks, golf courses, hotels and other sites make clear that discrimination by places of public accommodation remains widespread.
This week, the Supreme Court handed down a much-anticipated decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The 7-2 ruling handed a narrow victory to the cakeshop by finding that its owner did not receive a fair and impartial tribunal hearing. The Supreme Court pointed to factual evidence that the majority believed reflected bias on part of the commission against the cakeshop owner’s claims. Additionally, the court upheld the general principle that business owners cannot rely on religious or philosophical objections to discriminate against protected individuals, including LGBT individuals, in violation of applicable public accommodation laws and largely avoided the thornier constitutional arguments raised by the baker, Jack Phillips. However, by reversing the Colorado Civil Rights Commission’s ruling, the court missed an opportunity to unequivocally condemn the pervasive discrimination and indignity that Charlie Craig, David Mullins and countless other LGBT individuals face in public accommodations.
Citing Church of Lukumi Babalu Aye Inc. v Hialeah, the Supreme Court found that the commission violated the First Amendment’s free exercise clause by demonstrating “clear and impermissible hostility” toward Phillips’ religious objections. This “hostility” was evidenced by comments made by some of the commissioners at two public hearings on Phillips’ appeal to the commission, and the commission’s treatment of similar cases involving other bakers who had declined to make cakes including anti-gay messages. However, as Justice Ruth Bader Ginsburg notes in her dissent joined by Justice Sonia Sotomayor, the different cases involving William Jack highlighted by the court are “hardly comparable.” In March 2014, William Jack requested cakes with images and messages demeaning gay marriage from three different bakeries. Specifically, he requested that the cakes be made:
To resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of the two groomsmen, holding hands, with a red “X” over the image. On one cake, he requested [on] one side[,]… “God hates sin. Psalm 45:7” and on the opposite side of the cake “Homosexuality is a detestable sin. Leviticus 18:2.” On the second cake, [the one] with the image of the two groomsmen covered by a red “X” [Jack] requested [these words]: “God loves sinners” and on the other side “While we were yet sinners Christ died for us. Romans 5:8.”
Although the bakers did not object to making cakes resembling Bibles, they refused to incorporate Jack’s anti-gay messages. Jack then filed charges with the Colorado Civil Rights Division alleging that the bakers had discriminated against him on the basis of his religious beliefs. The division found no probable cause to support Jack’s claim, observing that the bakeries sold other cakes and goods with Christian symbols and had similarly denied requests by other customers who had requested designs “demeaning people whose dignity the Colorado Anti-Discrimination Act protects.” The commission affirmed.
These factual allegations are starkly different from the allegations made by Craig and Mullins. Craig and Mullins sought a cake to celebrate their wedding and, even though Phillips regularly sold wedding cakes to heterosexual couples, they were outright denied because of their sexual orientation. In fact, Craig and Mullins did not even have an opportunity to discuss any specific cake designs before being turned away by Phillips. Had Craig and Mullins been a heterosexual couple, Phillips would have sold them a wedding cake. Thus, the denial of service to Craig and Mullins, unlike the denials of service to Jack, was based on a protected characteristic — their sexual orientation – and was a clear violation of CADA. The commission’s ruling was correct.
Yet the commission’s purported different treatment in these cases in large part convinced the Supreme Court that a reversal was warranted here. The court’s view that Craig and Mullins’ case is comparable to Jack’s cases in the first place is troubling. That view ignores the pervasive and structural discrimination that LGBT people, including LGBT people of color, face in all facets of their lives, including in public accommodations. It will also invite challenges by religious business owners who discriminate against LGBT individuals and are found by adjudicatory bodies to be in violation of public accommodation laws. These challenges will harm people of color, who are increasingly self-identifying as LGBT and are more susceptible to hate and bias incidents.
Despite being narrow, the Masterpiece ruling will require vigilance to monitor challenges by religious business owners and to ensure that anti-discrimination laws are vigorously enforced on behalf of LGBT individuals in the localities and states that prohibit sexual orientation discrimination. Strong state and local public accommodation laws like CADA are vital in ensuring that LGBT individuals are treated with dignity and respect in the marketplace and that victims of discrimination obtain relief. We will continue to fight on behalf of marginalized communities to ensure that their rights are not further weakened.