![\"Jack](\"https:\/\/i2.wp.com\/www.towleroad.com\/wp-content\/uploads\/2017\/06\/3_phillips.jpeg?resize=600%2C335\")
<\/p>\nHigh Stakes for LGBTQ Equality in the Anti-Gay Baker Case at the Supreme Court<\/b><\/p>\n
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On Monday, the Supreme Court granted a writ of certiorari in\u00a0Masterpiece Cakeshop v. Colorado<\/em>, a case in which a Denver bakery refused to bake a wedding cake for a same-sex<\/a> couple<\/a> on the grounds that same-sex<\/a> marriage violates the baker\u2019s personal religious beliefs.<\/p>\n The case raises questions about the scope of the First Amendment\u2019s Free Exercise of Religion clause and the reach of state anti-discrimination and public accommodations laws. It also offers an opportunity for the Court to either reaffirm its commitment to\u00a0Obergefell<\/em> and LGBTQ equality or carve out a donut hole so big that would make marriage equality meaningless. There are high stakes involved in\u00a0Masterpiece Cakeshop<\/em>, and it has the potential to set the tone for LGBTQ rights for some time.<\/p>\n In July 2012, Charlie Craig and David Mullins visited the Masterpiece\u00a0bakery in Lakewood, Colorado, and requested that its owner, Jack Phillips, create a cake to celebrate their same-sex<\/a> wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex<\/a> weddings because of his religious beliefs. He did volunteer to sell them other baked goods, though, but none having anything to do with their gay<\/a> wedding.<\/p>\n At the time, Colorado did not recognize marriage equality. But the state, like every other state, has what we call<\/a> public accommodations laws. These laws make clear that if you own or run a public-facing business, that is, where you invite in members of the public to buy your goods or services, you cannot discriminate against them on the basis of race, religion, national origin, gender, or sexual orientation. So, Mssrs. Craig and Mullins filed a claim with Colorado\u2019s Civil Rights Division alleging discrimination on the basis of sexual orientation in violation of Colorado\u2019s anti-discrimination laws.<\/p>\n No one argues about the facts. Mr. Phillips admits that he discriminated against Craig and Mullins. He just argues that he has the right to. Specifically, he suggests that the First Amendment Free Exercise Clause guarantees him the right to pursue his religious beliefs as he sees fit, and one of his religious beliefs is that gay<\/a> marriage is wrong. Religious freedom to Mr. Phillips means the freedom to discriminate.<\/p>\n Too many persons of faith agree with him. But the law of the State of Colorado does not. The Civil Rights Division sided with Craig and Mullins.<\/p>\n Colorado law states:<\/p>\n It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a\u00a0group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .<\/p>\n In order to win a discrimination case, a plaintiff has to prove that \u201cbut for\u201d being part of a protected class of persons (in this case, gay<\/a>), the service would have been rendered. That is\u00a0exactly what happened in this case. Masterpiece makes wedding cakes for opposite-sex<\/a> couples<\/a>, but it won\u2019t do the same for same-sex<\/a> couples<\/a>. That\u2019s discrimination on the basis of sex<\/a>\u00a0and<\/em> sexual orientation.<\/p>\n Phillips argument in response is pretty hard to swallow. He said he was happy to sell baked goods to gay<\/a> people. So, he isn\u2019t a bigot. Rather, he refuses to sell them baked goods to be used as part of a ceremony that violates Phillips\u2019 religious beliefs.<\/p>\n This argument rehashes old theories. Some people used to argue that it may not be ok to discriminate against someone on the basis of his or her status, i.e., as a gay<\/a> person, but it\u2019s totally fine to discriminate against someone for his or her actions, i.e., marrying a person of the same sex<\/a>. But the Supreme Court has said numerous times that there is no daylight between status discrimination (again, for being gay<\/a>) and discrimination on the basis of activities closely associated with that status (like engaging in same-sex<\/a> intimate relationships, having sex<\/a> with someone of the same sex<\/a>, or marrying someone of the same sex<\/a>, and so on).<\/p>\n It is pretty clear that Masterpiece\u2019s and Phillips\u2019s arguments should go nowhere. The Supreme Court has made clear where it stands.<\/p>\n But this is only true if the\u00a0Obergefell\u00a0<\/em>majority holds.<\/p>\n As we saw yesterday, at least three conservative justices \u2014 Thomas, Alito, and Gorsuch \u2014 are itching to destroy\u00a0Obergefell<\/em> by absurdly narrowing it, making it meaningless<\/a>. That Chief Justice Roberts, who joined the dissent in\u00a0Obergefell<\/em>, sided with the\u00a0Obergefell<\/em> majority in the Arkansas case has suggested to some\u00a0that he thinks the matter is done, decided, and not to be challenged.<\/p>\n That\u2019s wishful thinking, especially since Roberts wrote a lengthy and powerful (if discriminatory) dissent in Obergefell<\/em>. The decision in\u00a0Pavan<\/em>\u00a0was \u201cper curiam,\u201d or \u201cby the court,\u201d which lets individual justices hide their true feelings. More likely, given the Chief Justice\u2019s\u00a0penchant for overturning precedent when it neatly fits his conservative ideology<\/a>, he just didn\u2019t have the votes. But either way,\u00a0Obergefell<\/em> is hanging by a thread. The offensive against it may not come head on, as in a case that seeks to overturn it directly. It will come in cases like\u00a0Masterpiece Cakeshop<\/em>, which gives the conservatives a chance to enshrine anti-gay<\/a> discrimination into law.<\/p>\n It is notable that this petition for review had been sitting at the Supreme Court for nearly a year. The Court may have been waiting until it had its full list of 9 members, even though one of them shouldn\u2019t, by all norms and rights, be there. That means the petition could have been granted by the 4 conservative members of the Court thinking they can peel away Justice Kennedy, who may have written\u00a0Obergefell<\/em> but has sided with the conservatives on religious freedom cases in the past. More on that to come.<\/p>\n The post High Stakes for LGBTQ Equality in the Anti-Gay Baker Case at the Supreme Court<\/a> appeared first on Towleroad<\/a>.<\/p>\nREAD THIS NEXT:\u00a0Neil Gorsuch Isn\u2019t Conservative. He\u2019s Reactionary.<\/a><\/em><\/h2>\n