The United States Supreme Court offered dangerous encouragement this month to those scheming to undermine marriage equality and otherwise deny civil rights to LGBTQ people.
The court issued what many are calling a “limited ruling” in the much-anticipated case of the Colorado baker who refused to bake a wedding cake for a gay couple: Masterpiece Cakeshop v. Colorado Human Rights Commission.
The ruling focused on the argument that certain members of the Commission had demonstrated bias against religion and thus deprived the baker of the impartial hearing he deserved. But that only makes the ruling slightly less troubling. There was no outright decision made about whether religious freedom entitled the baker to discriminate against LGBTQ customers.
The Supreme Court did affirm that religious beliefs do not give a broad free pass to violate civil rights laws. And yet, whether intended or not, the court majority’s musings about potential exemptions invite both more discrimination and more lawsuits crafted to undermine marriage equality and civil rights protections more generally.
Religious freedom under our Constitution has always meant the right to believe whatever you wish ― but not to act on your beliefs in ways that harm others. The Supreme Court should have simply applied that principle, as every one of a dozen state appeals courts has done in nearly identical cases. Instead, the high court described the issue as “difficult” and hypothesized numerous contexts in which religion- and speech-based exemptions might be warranted.
In doing so, the Supreme Court has become an accomplice in Christian conservatives’ strategy to hollow out the right to equal marriage. This risks creating what Justice Ruth Bader Ginsburg memorably termed “skim-milk marriages.”
The court’s previous marriage equality decisions were emphatic that LGBTQ couples’ marriages are equal in every respect to the marriages of different-sex couples. There is no such thing as “same-sex marriage” ― there’s just marriage, and if you’re married, you are entitled to the same protection under the law as any other married couple, regardless of sex or race. That needs to mean equality when a couple enters a business that offers services to everyone else.
There’s nothing unfair about this. When you open a business, you have wide latitude in choosing what product to sell and how to run your store ― but you can’t choose your customers. You don’t have to like them, you don’t have to approve of them, and you certainly don’t have to invite them into your home. But you can’t reject them because of who they are, and you can’t be coy about your reason for doing so, pretending it’s not the customer you dislike, just the fact of their marriage.
At least not until now. As Ginsburg said in her dissent, “Phillips declined to make a cake he found offensive, where the offensiveness of the product was determined solely by the identity of the customer requesting it.”
Lambda Legal, together with the Family Equality Council and 11 other organizations, filed a friend-of-court brief in the case, documenting the pervasiveness of the discrimination LGBTQ people already face. The brief detailed the everyday experiences of hundreds of LGBTQ individuals, spouses, parents and children who have contacted our organizations. We hear from people facing discrimination at every stage of life, from being rejected from a childbirth class because “the other couples wouldn’t feel comfortable with a lesbian couple here,” or having a pediatrician refuse to treat the child of gay parents, to more quotidian rejections: at the post office, changing your name on a post office box, or being turned away by a tax preparer who wouldn’t do a married couple’s taxes.
This month’s ruling was a step backward for LGBTQ rights, and for America at large, because it accepted the idea that discriminatory beliefs about a group of people deserve special respect and solicitude if they’re based in religion. It’s one thing to say such beliefs have firm constitutional protection. It’s quite another to say they deserve respect and kid-glove treatment by state civil rights enforcers.
The lives and livelihoods of LGBTQ people and so many other minorities are at stake when we excuse prejudice of any kind. As movements striving for social justice in this country, we all have worked too hard and for too long for the court to defend the honor of discriminators and castigate those who call it out when religious liberty is misused as a tool of dominance and exclusion.
We will continue to fight in every arena and in every court until LGBTQ people and people living with HIV have full equality under the law in every aspect of our lives. We will fiercely resist the coming effort that will seek to turn this ruling into a broad license to discriminate. We deserve no less.
Rachel B. Tiven is the CEO of Lambda Legal.