On Monday, October 2, 2017, the United States Supreme Court began its 2017-2018 term. In recent decades, the Supreme Court has taken an interest in cases affecting the LGBT community, culminating with the landmark 2015 ruling recognizing marriage as a Constitutional right held by same-sex couples on the same terms as everyone else.
The current term is no exception. In the coming months, the Court is expected to hear and decide the case of Masterpiece Cakeshop, Ltd. v. Charlie Craig & David Mullins, which involves a Colorado (again) bakery owner’s willful refusal to bake a wedding cake for a same-sex couple. Although the Supreme Court often garners less interest and attention than its other two co-equal branches of the government, this is one case that every LGBT citizen and every ally needs to watch closely.
Here are the facts: a Colorado state law requires businesses to serve LGBT people on the same terms and conditions as it does everyone else. When Charlie Craig and David Mullins approached the owner of the Masterpiece Cake Shop seeking a wedding cake, the owner flatly refused to serve them based solely on their sexual orientation. The couple sued and prevailed in the Colorado Supreme Court, which ruled that the owner of the cake shop had illegally discriminated against them.
The owner of the cake shop appealed to the Supreme Court alleging that the Colorado law violates his Constitutional right to discriminate against gays and lesbians.
His arguments are twofold: first, he claims that by requiring him to create a wedding cake, which he regards as a form of creative speech and expression, the State is forcing him to “participate” in a marriage that he is personally opposed to. He contends this violates his First Amendment right to free speech because it forces him to “speak” through his art in support of same sex marriage.
His second argument, also based in the First Amendment, is a familiar one. He contends that the Colorado law violates his religious liberty by forcing his participation in a marriage that he opposes on religious grounds.
A win for the cake shop would be disastrous for the LGBT community.
Firstly, one could think of some way in which the provision of almost every good and/or service involves some form of creative expression. If the Court rules that any law requiring business to provide such goods and services to LGBT people constitutes a forced endorsement of their occasion or lifestyle, then anyone engaged in any kind of creative endeavor would suddenly have a Constitutionally protected right to discriminate against the LGBT community, which could not be restricted by law.
The result would be equally disastrous if the Court buys the owner’s religious liberty claim. Religious liberty statutes allowing people to ignore laws on the basis of claimed religious belief” are already on the books in some states. One almost made it to law here in Virginia. If the cake shop wins, such statutes would be beyond challenge.
So, this case is about much more than a cake. It is no exaggeration to say that this case is about nothing less than a State’s Constitutional power to protect a targeted population from becoming a Constitutional underclass.
It is difficult to predict know how the Court will rule, but there is reason for optimism. Justice Anthony Kennedy has always been the tiebreaker casting many deciding votes in our favor.
However, the present term is likely Kennedy’s last, and his departure will give the current President the power to nominate his replacement and probably be confirmed by a majority vote in the senate.
As of today, the argument in the case is set for December 5, 2017, with a decision expected by June 30.
Stay tuned to tis space as we continue to examine this case and other developments in the religious freedom debate.
Scott Michael Goodspeed, Esq. is a graduate of New York University and Albany Law School of Union University. He has more than 15 years of practice in employment, civil rights and constitutional law and for five of those years, taught Constitutional Law for the State University of New York. He presently serves as Assistant Director Labor Relations for Norfolk Southern Corporation.