In general, any business can refuse service to anyone for no reason. But it can’t refuse service for a bad reason. That is the principle at the heart of the Masterpiece Cakeshop case that has now worked its way from a storefront in Lakewood to the steps of the United States Supreme Court.
The problem is defining a bad reason – and whether there are exceptions. Specifically, cakeshop owner Jack Phillips contends that despite Colorado’s public accommodations law, the First Amendment grants him the right to refuse service to a gay couple ordering a wedding cake. That moment created a conflict between competing constitutional principles.
With a 5-4 decision likely, Justice Anthony Kennedy will probably add to his burgeoning swing-vote legacy. As a leading equality advocate and classical conservative, I hope for Kennedy to reprise his role from the Obergefell marriage equality case and stand against discrimination.
I recognize and believe Philips to be a soft-spoken, warm person and devout Christian. He is not a stereotypical hate-monger filled with rage like the members of the Westboro Church. Like the vast majority of Christians who oppose marriage equality, I believe he does so from a sincere and reflective understanding of his faith. That is no different from Christians like myself who have come to the opposite conclusion. And his claims for free speech and freedom of religion are rooted in well-founded law.
However, when speech moves outside the marketplace of ideas and into the marketplace of goods and services, it loses some constitutional protections. Consequently, when they subsequently run afoul of other constitutional principles, the First Amendment cannot be used as a shield. In Phillips’ case, his commercial speech must bend to accommodate the right to equality imbued in his customers.
Public accommodations laws date back to the aftermath of the Civil War. Introduced and adopted by Republicans in the Civil Rights Act of 1875, public accommodations share a lineage with the Thirteenth, Fourteenth, and Fifteenth Amendments to the US Constitution. As Justice John Marshall Harlan wrote in his eloquent dissent to the Civil Rights Cases, “Citizenship in this country necessarily imports equality of civil rights among citizens … It is fundamental in American citizenship that … there shall be no discrimination by … corporations exercising public functions.”
Unlike the Reconstruction Amendments, public accommodations did not survive the postbellum Supreme Court. Nearly 100 years of struggle later, Republican Sen. Everett Dirksen shepherded the return of public accommodations into the Civil Rights Act of 1964. Since then, public accommodations have survived more than a half-century of court challenges and been adopted in most states of the union.
In many states, including Colorado, the short list of protected classes — only eight in our state — have been expanded to include sexual orientation. Colorado’s law declares it is “a discriminatory practice and unlawful … to refuse … the full and equal enjoyment of the goods, services, … or accommodation” of a place of business to an individual because of disability, race, creed, color, sex, sexual orientation, marital status, or ancestry. Our state legislature choose to protect those limited categories from the discrimination — and denial of constitutional equality — to which they have been historically subjected. The Supreme Court should not disturb that sovereign choice.
The author Victor Hugo once wrote, “if liberty is the summit, equality is the base.” The American Declaration of Independence recognizes the same fundamental delineation; it declares, “all men are created equal” before enumerating inalienable rights, including the right to liberty. While I sympathize with Phillips, his victory in court would be on balance a step backward in our democracy. The Supreme Court must refuse to take that step.
Mario Nicolais, a member of the board for One Colorado’s political action committee, is an attorney and writes columns on law enforcement, the legal system, and public policy. Follow him @MarioNicolaiEsq