For older LGBT adults, equality is not a piece of cake

When Jack Phillips told a young gay couple that that he would not sell them a wedding cake because he has a religious objection to same-sex marriage, he set in motion a chain of events that has led to a case now before the U.S. Supreme Court, which will hear the case on Dec. 5. While some people are calling this the “cake case,” much more is at stake than whether bakers can refuse to sell wedding cakes to same-sex couples.

The Court’s decision could seriously impair the ability of LGBT older adults to access the services and supports that they need.

{mosads}How did we get here? After Phillips refused to serve the couple, they filed a complaint with the Colorado Civil Rights Commission. The Commission ruled that Phillips had violated the state’s “public accommodations” law, which expressly prohibits businesses that serve the public from discriminating against LGBT people. The Commission issued a straightforward order: If Mr. Phillips wants to continue to sell wedding cakes to straight couples, he must sell wedding cakes to same-sex couples.

Before the Supreme Court, Phillips contends that the First Amendment to the Constitution — which protects the free exercise of religion — gives him a license to discriminate. Specifically, Phillips argues that Colorado cannot enforce its laws against discrimination because doing so would require him to “participate in events” and “express ideas” that “offend his religious convictions.”

The Colorado Commission did not order Jack Phillips to participate in a same-sex marriage ceremony. Neither did it require him to express support for same-sex marriage. The Commission simply ruled that, if Phillips wants to sell wedding cakes to the public, he has to sell wedding cakes to all members of the public. Phillips’s argument comes down to the assertion that, notwithstanding Colorado’s public accommodations law, his religious beliefs entitle him to refuse to serve LGBT people.

The implications of that argument for LGBT older adults are terrifying.

As a result of a lifetime of discrimination, LGBT elders frequently have poorer physical and mental health than other older Americans. They also have higher rates of poverty. At the same time, LGBT elders are twice as likely as other older Americans to live alone, half as likely to have close relatives to call for help, and four times less likely to have children to assist them. Consequently, LGBT elders are especially dependent on senior centers, assisted living communities, and long-term care facilities — each of which, like Phillips’s bakery, is generally considered to be a public accommodation. 

LGBT elders already face significant discrimination when they seek to access many public accommodations. Fear of discrimination deters many LGBT older Americans from going to local senior centers, while older same-sex couples are often dissuaded from moving to adult independent living communities. At the same time, some LGBT elders have been denied admission to nursing homes and other long-term residential care facilities because of their sexual orientation or gender identity.

Those who have been admitted to such facilities have been subjected to discrimination, harassment, and even physical segregation.

This discrimination does not always end with their deaths.  LGBT people have been denied service by funeral homes. They have been barred from being buried beside their spouses/partners. In perhaps the final indignity, they have been prevented from having their relationships acknowledged on their gravestones.

Following the Court’s 2015 marriage equality decision, many LGBT elders dared to believe that they could live out the remainder of their days in dignity, as full and equal citizens. To the extent that businesses and non-profit organizations sought to discriminate against them, state public accommodations laws offered significant protection.

If the Supreme Court rules in favor of the baker, however, laws in 21 states and the District of Columbia that expressly prohibit discrimination on the basis of sexual orientation and gender identity will be rendered largely unenforceable. Many institutions that provide services to older adults — especially long-term care facilities — are affiliated with a religious denomination. Some will inevitably claim that a government order that requires them to treat LGBT people the same as everyone else unconstitutionally violates their religious rights. 

The impact of a judgment for the baker would sweep far more broadly. Like Jack Phillip’s bakery, many businesses and non-profit organizations are not affiliated with any religious denomination, but are operated by people who profess religious convictions. They, too, also could claim a constitutional right to refuse service to LGBT people.

This misguided application of the First Amendment would have a devastating impact on the hard-won rights of LGBT elders. LGBT older Americans would be forced to return to the lives they thought they had left behind — lives in which they never knew when they would be denied the equal treatment that most people take for granted, but in which they were certain that the law would not protect them.

Michael Adams is the Executive Director of Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders, Robert Blancato is chair of the board of directors of the American Society on Aging, and and Jack Nadler is a partner at Squire Patton Boggs, which represents the two organizations in this matter. They have filed a ‘friend of the court’ brief in this case.