Americans of the religious right who oppose gay marriage should curb their enthusiasm — and those who oppose them, their disappointment — over Monday’s Supreme Court ruling in favor of a Colorado baker who did not want to make a wedding cake for a same-sex couple.
There’s less than meets the eye. However, the ruling represents an unfortunate step down the slippery slope away from the rights that members of LGBT communities, and their advocates, fought so hard to secure.
But here’s what the narrowly cast ruling doesn’t do:
▪ It rejects the argument that the Constitution gives businesses a right to discriminate if serving someone would violate their religious beliefs. Justice Anthony Kennedy, writing for the majority in the 7-2 decision said: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”
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▪ It does not give conservative Christians, like baker Jack Phillips, the right to follow only the laws they like. However, they remain poised, aided by the Republican Party, to continue to push their religion far beyond the church door and into secular life. They’ve already has a taste of success. In the Hobby Lobby case, the Supreme Court ruled in 2014 that a private corporation should be able to exempt itself from the law if it goes against their religion. In that case, it was the Affordable Care Act requirement that insurance plans cover contraception.
▪ It doesn’t give the LGBT community the sort of full-throated backing that says discrimination against its members is unconstitutional. So there’s work to do.
The Court’s ruling focused solely on the specifics of the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Two gay men filed a complaint against Denver bakery owner Phillips, who refused to make them a wedding cake. The couple filed a complaint with the Colorado Civil Rights Commission.
In Colorado, businesses that serve the public cannot, by law, refuse service to people based on religion, race, sex, sexual orientation or gender identity. No one is denied service because of what they are.
Though Phillips admitted that his policy was to refuse service to same-sex couples seeking wedding cakes, he argued that he had a constitutional right to do so — in violation of state law — based on his religious and free speech rights.
However, it was the gay couple’s allies on the civil rights commission allies that got the Supreme Court’s censure. It ruled that commissioners were openly hostile to Phillips as a man of faith. A commissioner ranted that, “One of the most despicable pieces of rhetoric that people can use [is] to use their religion to hurt others.” It was an inappropriate statement. Each side deserved a fair hearing.
Monday’s ruling does not set broad precedent regarding gay Americans and their fight for first-class citizenship. However, unlike Colorado, many states and localities do not explicitly protect them from discrimination in public services, housing or employment. Miami-Dade County, with its enlightened Human Rights Ordinance is a leader here.
“No Negroes allowed,” “No Jews need apply” still burn within the memories of many spurned Americans. Courts should affirm that the Constitution is expansive enough, resilient enough to protect people of faith and the secular lives of America’s diverse citizens.