Beyond Wedding Cake: Regardless of SCOTUS Decision, Discrimination Remains A Scourge to LGBT People Across the Country

By Kate Scott, ERC Deputy Director, and Elias Cohn, ERC Senior Coordinator of Strategic Initiatives

This week the U.S. Supreme Court (SCOTUS) handed down a much anticipated decision in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. A National Review headline giddily declared that the Supreme Court struck “a blow for the dignity of the faithful” in deciding in favor of Jack Phillips, a Colorado business owner who refused, based on “deeply held religious convictions,” to sell a cake to a gay couple for use in their wedding reception.  In the  decision, SCOTUS held that the Colorado Civil Rights Commission (CCRC) violated Mr. Phillips’ 1st Amendment rights by sanctioning him under Colorado’s Anti-Discrimination Act (CADA)—which prohibits discrimination based on sexual orientation—for refusing to provide the couple with equal service. Although the legal implications of this disappointing 7-2 decision have been hotly debated this week, it is imperative that civil rights supporters recognize the larger political and strategic context in which the Masterpiece case occurred. Further, the decision and resulting coverage have chilling implications beyond the narrow legal decision issued this week.

Masterpiece represents an expertly calculated and well-funded strategy:

Since suffering high profile defeats in the battle over marriage equality in 2015 and a dramatic shift in overall public opinion toward embracing LGBT rights, those opposed to LGBT inclusion have adeptly teed up battles like Masterpiece (and Arlene’s Flowers) in order to keep the so-called “culture wars” alive and capture debates over discrimination within a framework that favors their cause.

Though it started as a civil dispute between Coloradans in 2014, some of the nation’s most powerful opponents of LGBT rights have since focused their efforts on the Masterpiece case. The Alliance Defending Freedom (ADF), the largest anti-LGBT legal group in the U.S. (designated a hate group by the Southern Poverty Law Center), represented Phillips in Masterpiece and made the case a centerpiece of their legal efforts to challenge anti-discrimination laws as threats to “religious liberty.”  Not to be outdone, a group of 86 congressional Republicans led by Senator Ted Cruz of Texas also waded into the battle, filing an amicus brief supporting Phillips’ novel legal claim that the process of baking and decorating a cake is a form of “speech” and that a reversal of Colorado’s “restrictions” on Phillips’ right to discriminate was “necessary to protect the First Amendment rights of all Americans.”

However, it is critical to understand that this legal strategy is just one facet of an overall well-coordinated effort to frame LGBT demands for basic human rights as a threat to “religious freedom” in public discourse. It is no coincidence that cases like Masterpiece and Arlene’s Flowers, pursued and emphasized by opponents of LGBT rights, address access to luxury items rather than basic necessities. While discrimination on the basis of sexual orientation and/or gender identity in any form is unacceptable, cherry picking cases that involve access to luxury items like wedding cake and flower arrangements rather than basic necessities is a key strategy used to push a misleading narrative that pits the “freedom of religion” and “freedom of expression” of small business owners against the “preferences” of LGBT consumers seeking to buy things most consider non-essential. Knowing that Americans, when surveyed, now overwhelmingly support anti-discrimination laws that would prohibit sexual orientation-based discrimination, those opposed to such laws know they can only win the argument when restricting the debate to this misleading framework.

Headlines matter in the fight to protect civil rights

As of today, it is unclear how legally impactful the Masterpiece decision will be.  Though some claim the decision will open the door to toppling state and local anti-discrimination laws around the country, others point out that the official opinion of the court did not question the constitutionality of Colorado’s legal protections, and leaned heavily on the argument that the CCRC mishandled this particular case by showing “hostility” toward Mr. Phillips’ religious convictions and by treating the case differently from other cases that may have been legally comparable. Indeed, the opinion takes care to state that “as a general rule” objections based on religious beliefs do not allow “business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law,” emphasizing the limited legal precedent this decision is intended to set.

However, the specific legal implications of this week’s SCOTUS decision will likely be irrelevant to many people who experience discrimination in public accommodations around the country. Headlines from most major media outlets simply proclaimed that SCOTUS decided Masterpiece on behalf of a small business owner who didn’t want to serve a gay couple. Civil rights protections at the local and state levels are already often difficult to access for people who don’t have the support of a legal brain trust or access to the financial coffers that groups like the Alliance Defending Freedom offer. We can expect that the Masterpiece decision will have a practical chilling effect when it comes to the willingness of victims of discrimination to report it. Further, it will likely also discourage the efforts of local entities like the Colorado Civil Rights Commission in communities across the country to protect everyone’s civil rights. To be sure, these consequences are also part of the overall strategy from civil rights opponents in reframing the debate over equal access to public accommodations.

Especially in the wake of the Masterpiece decision it is critically important to break out of the “threat to religious freedom” narrative advanced by opponents of LGBT inclusion. Evidence suggests that despite recent victories, many LGBT Americans still face myriad life or death obstacles, including housing and employment discrimination, barriers to medical care, mistreatment by law enforcement and lack of access to basic government services. Unlike the more controversial and symbolically fraught debates around cake, flowers, and wedding ceremonies, discussions concerning these basic life necessities appeal to many Americans’ fundamental sense of decency regardless of their political leanings. As part of the effort to reshape and reframe public discourse over LGBT rights, and break out of a framework strategically created by those opposed to LGBT inclusion, the ERC remains committed to investigating and bringing attention to these issues through our core strategy of civil rights testing.

If you believe you may have experienced discrimination in housing, employment, or public accommodations, you can contact the Equal Rights Center. To report your experience, please call 202-234-3062 or email info@equalrightscenter.org.

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