The 'Icing' on the Discrimination Cake: Justices Take Up Case
ALM Media
Updated
On the final day of the term, June 26, the U.S. Supreme Court agreed to hear the case of the Colorado baker, Jack Phillips, who refuses to make cakes for same-sex weddings on the basis of his religious beliefs. Unfortunately, we are going to have to wait to see if "religious freedom" includes the freedom to discriminate as the case will likely not be argued until late in the next session, which begins in October.
The case has slowly progressed since David Mullins and Charlie Craig sued the owner of Masterpiece Cakeshop for discrimination when Phillips refused to bake them a wedding cake because of their same-sex status back in 2012. The state courts agreed with the couple, stating Phillips violated Colorado's public accommodations law, which prohibits service refusal on the grounds of things like race, sex, marital status, and sexual orientation.
While the legal team for Phillips has more recently argued his refusal is more about not forcing an artist to create art that goes against his personal inspiration, Phillips himself initially stated that his refusal was based on the fact that baking cakes for same-sex weddings was against his religious beliefs. Despite losing the original suit and the appeals to the state, Phillips will still not bake a cake for a same-sex wedding. In fact, Phillips has decided that rather than risk having to bake a cake for a same-sex wedding, he no longer makes wedding cakes at all.
The Supreme Court agreement to hear arguments in the Colorado case has the potential to settle several disputes currently embroiled in the legal system from more than one state. There have been several cases, including other bakers, calligraphers, and photographers, who've had little success in the lower courts, with rulings along the lines of those in Colorado, stating businesses must comply with their states' anti-discriminatory laws. It was only earlier this year that the Washington Supreme Court ruled unanimously that a florist, Barronelle Stutzman, broke the state's anti-discrimination laws. Stutzman's lawyers vowed to ask the Supreme Court to overturn the decision, which now will rest on the Colorado case.
Other states have come to the opposite conclusion. The Kentucky appeals court recently upheld a printer's right to refuse to print shirts promoting a gay pride festival, and the Texas Supreme Court heard arguments in March regarding the challenge to Houston's decision to offer benefits to municipal employees' same-sex partners in the wake of the Obergefell v. Hodges, 135 S. Ct. 2071 (2015), decision that granted same-sex marriage rights throughout the country in 2015. The fight is far from over in Texas, as the Texas Supreme Court released its unanimous decision that same-sex couples are not guaranteed spousal benefits and ordered the case back to the trial level. Texas also recently signed into law allowing child welfare agencies to discriminate on the basis of sexual orientation, gender identity, marital status, or religion, by guaranteeing government funding will not be interrupted for denial of services including service providers refusing to help patients secure birth control or abortion information.
Many people, like myself, have wondered what the newly appointed Supreme Court justice, Neil Gorsuch, will bring to the table. Gorsuch, as you recall, is the Republican-appointed justice who was sworn in a controversially long time after the death of Justice Antonin Scalia. Since Gorsuch's appointment, the Supreme Court has ruled in a couple of cases regarding civil rights as they apply to LGBTQ citizens. The court sided with LGBTQ rights in upholding the California ban on conversion therapy for minors a practice that's been denounced by a plethora of medical and psychological organizations as fraudulent and dangerous to the patient. Just this Monday, the Supreme Court overturned the Arkansas Supreme Court ruling that allowed different treatment regarding birth certificates where married same-sex parents were involved. The U.S. Supreme Court ruled that the state must list married same-sex parents, regardless of biological relation, on the birth certificate. The Supreme Court ruled that refusal to list both partners in a married same-sex relationship was a denial of those married couples' "access to the 'constellation of benefits that the state has linked to marriage,'" quoting the Obergefell decision.
While Gorsuch has agreed with the opinions of the conservative-minded Justices Clarence Thomas and Samuel Alito and Chief Justice John Roberts, the balance of the court is still very similar to when Scalia was a member. The U.S. Supreme Court is made up of four justices nominated by Democratic presidents, and five justices nominated by Republicans. However, it is Justice Anthony Kennedy, the moderate Republican appointed by President Ronald Reagan who wrote the majority opinions for United States v. Windsor, 570 U.S. ___ (2013), and Obergefell, that is often the swing vote in cases regarding LGBTQ rights.
The court's makeup has not changed with the appointment of Gorsuch, but it is in our best interest to keep our eyes on Kennedy. Rumors have been circulating for weeks about the potential for the 80-year-old justice, who is now the longest-serving justice, to announce his retirement. The close of the court's session came and went without such an announcement and the collective relief of the left was counteracted by the disappointment of the right. President Donald Trump will not yet get to replace another justice on the fairly divided Supreme Court. However, should Kennedy announce his retirement in the roughly 1,300 days remaining of the Trump administration, the battle over his seat would be very interesting and important. For now, though, it seems Kennedy will be there to swing the vote for the next session.
While the Supreme Court has declined to hear the Colorado bakery case in the past, some believe it's Gorsuch's presence and Kennedy's impending retirement that have inclined the court to finally hear the case. If recent rulings are taken into account, Gorsuch's influence may not have enough weight to sway the court's opinion in favor of Phillips and the frequent assertion that the First Amendment protects the right to discriminate against same-sex couples based on religious beliefs. If this happens, the question of religious freedom to discriminate laws is answered and Kennedy will save us once again.
