From AU's Wall of Separation blog:
Yesterday, I attended “Unfinished Business”—the LGBTQ summit hosted by The Atlantic in Washington, DC. The annual event is free to the public and seeks to showcase the current state of LGBTQ rights in the United States.
The event started with a discussion of Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case the U.S. Supreme Court just heard on Tuesday in which a baker refused to sell a cake to a gay couple for their wedding, in violation of Colorado’s nondiscrimination law. Americans United is no stranger to the case—we filed a friend-of-the-court brief arguing that no one has a religious right to violate civil rights laws.
First up, Rachel Tiven from Lambda Legal made it clear that this case is not about cake: It’s about discrimination. Colorado prevents public businesses from discriminating against people on a variety of grounds, including race, religion, sex, marital status, and sexual orientation. And, in Tiven’s words, there’s “no asterisk next to sexual orientation.” And she highlighted Justice Sonia Sotomayor’s statements during Tuesday’s oral argument, noting that, in a civic society like ours, you don’t need to like someone or invite them into your home; but if you run a business open to the public, you can’t deny them service based on who they are.
Tiven also questioned how this case is any different from a mid-1960s case in which a restaurant owner claimed he had a religious right to refuse to serve African-Americans. AU has wondered that before, too, and we don’t see a difference.
Next up was attorney Jim Campbell from Alliance Defending Freedom, a conservative legal group that is representing Masterpiece Cakeshop. He was joined by Barronelle Stutzman, the owner of Arlene’s Flowers, a floral shop that refused to provide flowers for the wedding of a same-sex couple. Campbell attempted to explain that, in his view, the bakery’s and the florist’s refusals to cater the weddings were not discrimination because the refusals were not based on who the customers were but on the event they were celebrating. But the only difference between marriage between same-sex people and marriage between heterosexual people is the sexual orientation of the couple. So it’s hard to see how the refusals were not based on who the couples were as people.
Campbell made the same argument when trying to distinguish this case from Loving v. Virginia, the Supreme Court case that struck down laws prohibiting interracial marriage. He claimed that racial discrimination is based on “who a person is” but that refusing to cater a gay couple’s wedding is not based on who they are. Again, we disagree. As our brief stated, when discrimination targets conduct that is “closely correlated with being a member of a marginalized group”— i.e. marriages of same-sex couples—“the object of the discrimination is not just the conduct but the persons as a class.”
The event also featured panels on HIV/AIDS, LGBTQ refugees, LGBTQ members of the Republican Party and transgender service members. It was a fascinating day, and I would highly encourage anyone interested in these issues to attend next year’s summit.