Opinion

Let them eat cake – High court to hear gay-rights case

In this Tuesday, Nov. 28, 2017, photograph, Charlie Craig and David Mullins are shown in their home in Denver. The Colorado couple is at the core of a legal case that goes before the U.S. Supreme Court for oral arguments on Tuesday, Dec. 5 in which Denver-area baker, Jack Phillips, cited his Christian faith in refusing to make a cake for the gay couple's wedding celebration in 2012.
In this Tuesday, Nov. 28, 2017, photograph, Charlie Craig and David Mullins are shown in their home in Denver. The Colorado couple is at the core of a legal case that goes before the U.S. Supreme Court for oral arguments on Tuesday, Dec. 5 in which Denver-area baker, Jack Phillips, cited his Christian faith in refusing to make a cake for the gay couple's wedding celebration in 2012. AP

"Qu'ils mangent de la brioche” (translated, “Let them eat cake”) was uttered centuries ago. Frequently attributed to Marie Antoinette reflecting a misunderstanding by the French upper-class of the needs of the working class, the exact origin of the phrase is unknown. This phrase has renewed relevance in 2017 with the popular dessert at the heart of an important case being heard by the United States Supreme Court today.

Many are not aware that Craig v. Masterpiece Cakeshop could be one of the most important gay rights decisions of the last 15 years. In 2015, many believed that gay people had finally achieved equal rights when Obergefell v. Hodges made clear that same-sex couples had the right to marry throughout the nation. In the words of Justice Anthony Kennedy, “[Same-sex couples] ask for equal dignity in the eyes of the law. The Constitution grants them that right.” However, Masterpiece Cakeshop seeks to undermine this “equal dignity” and bolster discrimination under the argument of freedom of expression and religious beliefs.

In Masterpiece Cakeshop, Colorado cake baker Jack Phillips was asked to sell a wedding cake to a same-sex couple in celebration of their marriage. His refusal was found to be a violation of Colorado’s Anti-Discrimination Act, applicable to places of public accommodation. Mr. Phillips argues that “wedding cakes inherently convey a celebratory message about marriage and, therefore, the … order unconstitutionally compels [him] to convey a celebratory message about same-sex marriage in conflict with [his] religious beliefs.” This argument will be made to our country’s highest court today, and should be rejected for several reasons.

Colorado’s Anti-Discrimination Act, generally applicable to all places of public accommodation in the state, is content neutral on its face, meaning it is viewpoint neutral and does not violate freedom of expression under the First Amendment. It has a rational basis; in the words of the Colorado Court of Appeals, it “prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind,’ and ensures that the goods and services provided by public accommodations are available to all of the state’s citizens.”

Public accommodation laws outlaw discrimination in the public sector based on a person’s identity. These laws apply to commercial business owners and service providers who choose to participate in our nation’s commerce system by interacting with the public; this system is regulated by the government. There is settled case law regarding the ability of the government to prohibit discriminatory conduct via public accommodation laws over claims of freedom of expression and religion. Indeed, if the Court were to hold in Masterpiece Cakeshop that Colorado’s anti-discrimination law did not apply to customers based on their sexual orientation in certain circumstances, the ability to discriminate would similarly be allowed against customers based on other traits listed in the Colorado law: race, creed, color, sex, marital status, national origin, or ancestry.

Ninety-plus “amicus” briefs have been filed in Masterpiece Cakeshop by others with an interest in this case: legal scholars, religious groups, broadcasters, cake artists, business owners, elected officials, medical associations, LGBT advocacy organizations, and others (including one by the Solicitor General of the United States). The far-reaching ramifications of a decision that would allow selective exclusion of certain members of the public from services available to everyone else are not hard to imagine: for example, based on religious objection to same-sex marriage, a CPA could refuse to prepare a couple’s joint tax return, a bed and breakfast owner could refuse to rent a room to a couple for the night, or a jeweler could refuse to make a ring for a couple’s anniversary.

Because North Carolina does not have a statewide public accommodations anti-discrimination law that includes sexual orientation, Masterpiece Cakeshop may not appear relevant to our landscape. However, HB142 (which replaced HB2) will allow local governments in 2020 to regulate public accommodations.

Further, a Masterpiece Cakeshop decision could affect the state’s discriminatory magistrate recusal law. Magistrates are the only public officials in North Carolina allowed to perform marriage. The magistrate recusal law allows magistrates to opt out of doing so if performing same-sex weddings conflicts with their sincerely held religious objection. There are many arguments against this law; a compelling one would seem to be that if the U.S. Supreme Court affirms that a place of public accommodation must treat all customers equally regardless of a claim of freedom of expression and religion, a state judicial official should be required to do so.

One of Webster’s definitions for masterpiece is “a supreme intellectual achievement.” The arguments today in Masterpiece Cakeshop should compel the Court to issue such an opinion, one that affirms anti-discrimination and “equal dignity” for all.

Lydia E. Lavelle is an associate professor of law at North Carolina Central University and the mayor of Carrboro, N.C.

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