From AU's Wall of Separation blog:
Monday was the two-year anniversary of the U.S. Supreme Court decision in Obergefell v. Hodges, the landmark case in which the high court recognized the rights of same-sex couples to marry. The Supreme Court chose that anniversary to announce it will review Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of a Colorado baker who refused to provide a wedding cake to a same-sex couple.
We hope the court will reach the same conclusion in Masterpiece as the lower courts: a business cannot use religion as an excuse to discriminate.
“The owner of Masterpiece Cakeshop can’t treat some people like second-class citizens because of his religion,” said Barry W. Lynn, executive director of Americans United. “With the eyes of the nation and history watching, the Supreme Court now has the opportunity to join lower courts in affirming that religious freedom does not grant a business owner license to harm others.”
In 2012, the owner of Masterpiece Cakeshop in Lakewood refused to bake a wedding cake for Charlie Craig and David Mullins. The couple filed a complaint with the Colorado Civil Rights Commission, which found that the baker had violated a Colorado law that prohibits businesses from discriminating against customers based on their sexual orientation.
The bakery appealed that decision to the Colorado Court of Appeals, and Americans United filed a friend-of-the-court brief with that court. We argued that the First Amendment does not excuse businesses from their obligation to treat all customers equally—even when the desire to discriminate is motivated by religion.
“[Nondiscrimination] statutes like Colorado’s do not burden or restrain business owners’ symbolic speech,” AU wrote in the brief. “Neither the act of accepting or turning away customers, nor furnishing baked goods and other similar products to customers, is the kind of activity deemed worthy of symbolic-speech protection under existing First Amendment doctrine.”
The court of appeals agreed with us and, in August 2015, affirmed the Commission’s finding. After the Colorado Supreme Court declined to hear the case, the bakery appealed to the U.S. Supreme Court.
The justices deliberated on whether to review the Masterpiece case for an extended period of time, leading to speculation that newly appointed Justice Neil Gorsuch could have provided the fourth vote needed for review.
Now that the high court has agreed to hear the case, it should make it clear that no claim to religious freedom can override nondiscrimination laws.
“Religious freedom—the right to believe or not as you see fit—is a fundamental American value. And finding a partner to love and to marry is a fundamental part of the American dream for many. Our country’s laws should provide everyone with access to both,” said Lynn.
Americans United made a similar argument in State of Washington v. Arlene’s Flowers, in which a florist refused to sell flowers to a same-sex couple. In February, the Washington Supreme Court unanimously ruled that the florist could not use religion to justify discrimination.
Like the Colorado bakery, the Washington florist had tried to justify her discriminatory practices by calling her work “expressive conduct”—in other words, nonverbal communication protected by the First Amendment.
But the courts in both Colorado and Washington rightly rejected this argument. In the Washington case, the court cited AU’s brief in dismissing the idea that discrimination laws don’t apply to businesses providing an “artistic” service. Such an arrangement, the court noted, would create an unworkable “two-tiered system” in which a “dime-store lunch counter would be required to serve interracial couples but an upscale bistro could turn them away.”
The Arlene’s Flowers case will likely be appealed to the U.S. Supreme Court as well. With several related cases filtering through the court system around the country, the high court should now definitively declare that businesses can’t use religion as an excuse to discriminate.