Wedding cake ruling’s silver lining for LGBT rights

On Monday, the U.S. Supreme Court issued its long-awaited decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, involving a baker who objected to making a wedding cake for a same-sex couple. Although the court ruled for the baker, its reasoning should give LGBT people hope — and spur lawmakers to take action.

The baker, Jack Phillips, appealed to the Supreme Court after both the Colorado Civil Rights Commission and its Court of Appeals ruled that he had discriminated against a same-sex couple who asked the bakery to make their wedding cake.  

{mosads}The Supreme Court’s decision to hear the case raised the alarm among civil rights advocates. A strong ruling on behalf of the baker could have upended decades of precedent stating that a state has a compelling interest in enforcing anti-discrimination laws, even if someone has a strong moral or religious objection to serving someone because of that person’s race, sex or sexual orientation.

Fortunately, the Supreme Court’s ruling did not do that. Justice Kennedy, writing for a 7-2 majority, ruled for Phillips on the narrow ground that the Colorado Civil Rights Commission had made dismissive or disparaging comments about his faith during its hearings, and sided in other cases with bakers who declined to put anti-LGBT messages on their cakes. The court concluded that the commission’s approach to Phillips’s beliefs ran afoul of the First Amendment’s requirement that officials be neutral toward religion.  

There is, in fact, a lot for LGBT advocates to celebrate in the opinion. The majority begins its analysis by emphasizing that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” While people are free to voice moral and religious objections, “it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

That’s good news for those who feared that the court would deal a death blow to nondiscrimination laws by creating a loophole for anyone who characterizes their wish to discriminate as a moral or religious objection.

Nonetheless, there are reasons for LGBT people to be vigilant. Discrimination against LGBT people remains common and widespread, and though the decision in Masterpiece is heartening in some respects, it will likely embolden those who wish to turn LGBT people away. In recent months, I’ve interviewed people across the United States who have been discriminated against or refused service in states that have enacted sweeping religious exemptions. One common refrain  in states with such exemptions is that people often think they stretch much further than they do.

Moreover, the court’s decision is unlikely to stem the flood of cases seeking to chip away at LGBT rights under the banner of religious liberty. Opponents of LGBT rights have filed dozens of those lawsuits, and they show no sign of stopping.

And while the court’s decision strongly affirms the principle that states have a compelling interest in enforcing anti-discrimination laws, including those that cover LGBT people, most states do not have those laws. The federal government has not expressly prohibited discrimination based on sexual orientation and gender identity in employment, housing, health care, education and public accommodations, and states have been slow to fill that gap.

So far, only 21 states and the District of Columbia expressly prohibit discrimination based on sexual orientation and/or gender identity in public accommodations. In the others, LGBT people have little recourse when they are fired, evicted or refused service simply because of who they are or who they love. Even though the decision is narrow, those who skim the headlines about Masterpiece — that the court sided with a baker who did not want to serve a same-sex couple — are likely to feel that they have a free pass to turn people away.

Stronger nondiscrimination laws have broad public support, though. A majority of people in every state and a majority of voters in both the Republican and Democratic parties support LGBT inclusive nondiscrimination laws. And 60 percent of Americans — including a majority of respondents in every state except North Dakota, South Dakota and Utah — do not believe that business owners should be able to refuse to serve gay and lesbian people because of the owners’ religious beliefs.  

For that reason, the decision in Masterpiece should be a call to arms for voters and lawmakers to uphold equality and nondiscrimination for LGBT people. Congress is considering bills that would make a difference — the Equality Act, which would prohibit discrimination against LGBT people at the federal level, and the Do No Harm Act, which limits the use of religion to deprive people of their rights.

The Supreme Court has spoken, affirming that lawmakers have the power to stop anti-LGBT discrimination. Now lawmakers should rise to the occasion and stand up for equality.

Ryan Thoreson is an LGBT rights researcher at Human Rights Watch. He holds a law degree from Yale University and previously was a research fellow at OutRight Action International. He is the author of “Transnational LGBT Activism: Working for Sexual Rights Worldwide” (University of Minnesota Press, 2014). Follow him on Twitter @ryanthoreson.