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Can We Have Our Cake and Eat It Too? Anti-Gay Baker Wins, But It’s Not a Loss for the LGBTQ Communit

On June 4, 2018, the U.S. Supreme Court handed down their much-anticipated decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case involved a dispute between Jack Phillips, a baker and owner of Masterpiece Cakeshop near Denver, Colorado, and a same-sex couple, Charlie Craig and David Mullins, who sought to purchase a cake from Phillips for their wedding. Phillips, who refuses to design cakes for same-sex marriages due to his religious beliefs, denied service to the couple. The Supreme Court issued a ruling 7-2 in favor of the baker.

LGBTQ advocates worried that if the Supreme Court ruled in favor of Phillips, it could give businesses a “license to discriminate” — because, in effect, any business could cite its religious beliefs to discriminate against LGBTQ people. That would open a hole in laws that ban anti-LGBTQ discrimination in the workplace, housing, public accommodations, i.e. businesses open to the public like Phillips’s, and schools.

If that proved true, it would be a huge blow to LGBTQ advocates. It is already the case that most states and the federal government do not explicitly ban anti-LGBTQ discrimination in these settings. So if the Supreme Court weakened the existing laws further, it would make a national landscape that is already unfriendly to LGBTQ people even worse.

The Supreme Court, however, more or less avoided these issues and looked at the broader debate. The Court focused on the facts of how Masterpiece Cakeshop was treated by the Colorado Civil Rights Commission.

Despite the 7-2 split, the Court only granted Phillips a minor victory, deciding the case narrowly on the fact that the Colorado Civil Rights Commission did not consider the case neutrally. The opinion, written by Justice Kennedy, found that the Commission treated Phillips with “elements of a clear and impermissible hostility” due to his “sincere religious beliefs that motivated his objection.” The Court did not address the larger question of whether or not Phillips’ First Amendment right to freedom of speech was violated when a lower court ruled against Phillips, finding that he had illegally discriminated when he refused to make a wedding cake for the same-sex couple.

The Supreme Court found that Phillips “was entitled to the neutral and respectful consideration of his claims” by all decision-making bodies. However, statements made by commissioners, including one who referred to Phillips’ beliefs as “despicable,” lacked the neutrality required by the Free Exercise Clause.

Nevertheless, Justice Kennedy made sure to note in the opinion 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.” In addition, he noted that similar future disputes should be addressed in a manner to avoid “subjecting gay persons to indignities when they seek goods and services” or “impos[ing] a serious stigma on gay persons.”

In light of this decision, GELC reaffirms the validity and importance of state and federal laws that protect LGBTQ people from discrimination. In fact, the Supreme Court went to great lengths to underscore that civil rights laws are enforceable, and that LGBTQ people and families can and should be protected from discrimination under law.


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