Ethan Kessler: To protect and serve
The Supreme Court’s latest term recently concluded with a slew of divisive decisions on several crucial issues, as well as groundbreaking news over Justice Anthony Kennedy’s departure from the Court. Overshadowed by these developments, however, was the decision handed down by the Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose implications were eagerly anticipated when the Supreme Court heard arguments late last year. The Court’s 7-2 ruling in favor of baker Jack Phillips of Masterpiece Cakeshop, who in 2014 refused to serve a same-sex couple, failed to produce a conclusive standard for the balance between religious freedom and anti-discrimination protection.
Regardless of future action, there remains an issue of greater interest that goes beyond the Colorado cakeshop and the gay couple to whom it denied its services: that even in Colorado – one of only 20 states that protects LGBT citizens from discrimination by public accommodations – a couple like Charlie Craig and Dave Mullins could be so plainly deprived of their civil rights and then be rejected after taking their case to court. Following the progression (or lack thereof) of the litigation, it soon becomes impossible to dismiss the great injustice of the status quo. More than anything, the Masterpiece Cakeshop case demonstrates the need to define sexual orientation as a federally protected class.
Conflict ensued shortly after Craig and Mullins, a same-sex couple seeking a cake that would suit their marriage ceremony, found themselves at the counter of Masterpiece Cakeshop. The bakery was headed by Phillips, a devout evangelical Christian who refused to make the couple one of his bespoke wedding cakes on the basis of Craig and Mullin’s sexual orientation.
Namely, Phillips’ counsel sought to obfuscate his impropriety by framing the case as one of stifled personal expression, with Phillips as a victim at the hands of the Colorado Civil Rights Commission. The Court’s conservative justices generally concurred, judging the Masterpiece Cakeshop incident along the lines of a similar Colorado case wherein a customer brought a cake design bearing an anti-homosexual message to a bakery, but baker Marjorie Silva’s refusal to fulfill his order was upheld.
The justices’ cry to the supposed double standard the Silva case presents, however, amounts to little more than conservative self-pity. The Colorado Civil Rights Commission sided with Silva precisely because she would have refused the customer’s same design request to any customer. It is not relevant that the man requesting the cake’s message was doing so in light of his own religious beliefs – it was the simply the content of the message, not the identity of the customer, that disgusted Silva, a characterization proven by the fact that she offered to sell him a plain cake and icing bag later so he could implement the design himself.
Phillips, on the other hand, based his refusal to serve Craig and Mullins solely on the basis of their identity. As dissenting Supreme Court Justice Ruth Bader Ginsburg pointed out, Craig and Mullins were not even able to arrive at their proposed design before Phillips rejected them. This proves that Phillips’ rationale lay with the identity of his customers and not with the content of any services they had requested of him, placing him squarely in violation of Colorado law and simultaneously exempting him from any defense contingent on the artistic nature of his cakes.
Nor is it relevant that Phillips’ defense presented his beliefs as complex; providing same-sex couples with cookies and birthday cakes, as opposed to wedding cakes, was considered by Phillips to be compatible with his faith because these goods are devoid of association with marriage. Much like the relationship between Easter and Christianity, or Yom Kippur and Judaism, same-sex marriage (especially after its nationwide legalization) is such a fundamental part of an LGBT lifestyle that discerning between “same-sex wedding cakes” and their heterosexual counterparts constitutes, in effect, discrimination of same-sex couples.
In light of the numerous merits of the case against Phillips, the language used in the court’s opinions is all the more astonishing. Accompanied by commentary that, by and large, overlooked Phillips’ obligation to subject his privately held beliefs to the civil rights of others, the decision handed down on June 4 exemplifies the need for broad, statutory consideration of sexual orientation as a protected class.
Pragmatically, this would relieve LGBT citizens from relying on state-level protections from discrimination in public venues. These protections can flounder where present, as exemplified by the Masterpiece Cakeshop case, and enable severe injustice where absent, as is the case in many states. Federal protections, on the other hand, would extend to all LGBT Americans the assumption of equality, affording categorical protection that only a select few groups currently enjoy.
Anyone doubtful of the legitimacy, if not the consequence, of these protections, could find justification for them in the current array of federally protected classes. From race and national origin to sex and disability, these classes comprise the immutable aspects of one’s character, those elements not up for change. Just as one does not choose the color of their skin, nor should one be forced to reconsider their religion, sexual orientation has yet to be proven as a matter of choice, and a wide body of research positively suggests otherwise.
While the freedom of religion undoubtedly remains one of the most sacred and justly guarded protections enshrined in the Constitution, Phillips’ actions in the Masterpiece Cakeshop case prove unqualified for justification on these grounds. Notwithstanding the sincerity of his beliefs, free expression does not supplant the state’s obligation to combat the disruption caused by discrimination, as the court has observed multiple times prior and as was even cited by Justice Kennedy. Recognizing sexual orientation as a protected class acknowledges the principles undergirding existing federal protections, while ensuring LGBT citizens are not again subjected to the privately held, albeit genuine, religious beliefs of others with whom they share the public space.