Religion and Discrimination: Thoughts on the Masterpiece Cakeshop Case

By Patrick Finnegan

As the U.S. Supreme Court prepares to rule on the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, it is important to consider the socio-political implications of the ruling.  The facts of the case are essentially thus: a gay couple approached Masterpiece Cakeshop in Lakewood, Colorado, about a wedding cake for their upcoming marriage ceremony and the proprietor, Jack Phillips, refused to serve them, citing his religious convictions opposing gay marriage.  Colorado’s Civil Rights Commission ruled that Mr. Phillips had violated Colorado’s prohibition on anti-LGBTQ discrimination.  Mr. Phillips, with the support of the Alliance Defending Freedom, took the case to federal court.

I think it is useful to step back from the legal formalities for a moment and consider the political and moral question involved in the Masterpiece Cakeshop case.  If sexual orientation is a question of inherent identity and not something that one chooses, then discriminating against people on that basis is morally equivalent to discrimination on the basis of race or sex.  It is still a U.S. political norm – however contested and unrealized – that discriminating against someone on the basis of their inherent identity is morally wrong.  A social conservative might respond that LGBTQ behavior is harmful and is therefore a legitimate basis for different treatment.  There is, however, no credible evidence that LGBTQ persons pose any threat to society because of their sexual orientation or identity.

A social conservative may also object to the premise that LGBTQ identity isn’t a choice, arguing that people choose to engage in “unnatural” behavior; therefore, refusing to serve them is a response to religiously objectionable behavior rather than inherent status.  Even if, for the sake of argument, we grant this premise (I don’t, but bear with me), then the issue is that religious objections to certain behaviors – even if tangible harm is unproven – constitute a valid reason for a vendor to treat one set of customers differently than others.  If that is the case, then the same logic could be applied to political affiliation or ideology.  Let’s say, for example, that I am a storeowner who has strong religiously rooted beliefs in non-discrimination and supporting the poor.  Such convictions are not uncommon among people of faith who lean left.  If I could make a coherent case that Republican policies violate my sincerely held religious beliefs – for example, by promoting discriminatory measures against LGBTQ persons – could I not make a coherent moral argument that I should not have to serve Republican customers because of what I believe to be their harmful behavior?  After all, political affiliation is a choice.

While there is certain moral logic to this line of reasoning, it runs into a legal obstacle: sexual orientation is not a federally protected status, unlike sex, race, and political association.  As I am not a lawyer, I will leave the legal intricacies of the Masterpiece Cakeshop case to those who are, but a quick overview shows where the gaps lie that may be filled by the Court’s decision. 

The Supreme Court’s ruling in Obergefell v. Hodges (2015) cited the Fourteenth Amendment’s equal protection clause to overturn state-level prohibitions on gay marriage.  The Fourteenth Amendment was also the basis for the Court’s 1967 ruling in Loving v. Virginia, which abolished state bans on interracial marriage.  The hitch here, however, is that the precedent of Obergefell is limited to state government entities, which regulate and issue marriage licenses, and thus does not extend to private businesses. 

While “places of public accommodation” are prohibited by the Civil Rights Act from discriminating against customers on the basis of race or sex, the Act does not specifically address sexual orientation.  It is possible – but not certain – that the Court will extend the meaning of sex discrimination to include sexual orientation and identity.  The Equal Employment Opportunities Commission has done so in regard to Title VII prohibitions on sexual discrimination.  The EEOC ruling, however, only applies to employers and not to customers. 

In this sense, then, the ruling in Masterpiece Cakeshop will break new legal ground.  The Masterpiece Cakeshop ruling will decide if the private right to religious freedom extends beyond personally held beliefs and into the public marketplace.  If the Supreme Court rules in favor of Masterpiece Cakeshop, it would effectively override key civil rights protections for LGBTQ persons in states across the country, protections that currently enable equal access to the marketplace.  Although sexual orientation is not a federally protected class, it is a protected class in Masterpiece Cakeshop’s home state of Colorado.  The Minnesota Human Rights Act also protects LGBTQ status in my home state.

Another set of questions that would be raised by a ruling in favor of the plaintiff: what constitutes “creative expression” in the marketplace and would, therefore, hypothetically enable religiously based discrimination against LGBTQ customers?  To what extent is wedding cake creation art – and thus protected First Amendment speech – and to what extent is it food service?  If wedding cake creation is an art, would a similar religious exemption apply to any caterer who views their food service as an art as well? Would a “sandwich artist” in a deli be able to invoke religious conviction to deny a sandwich to an LGBTQ couple?  What limits, if any, would there be on the ability of religiously conservative business owners to refuse service to LGBTQ persons by claiming that ordinary sales and services count as protected artistic expression?

A ruling against the plaintiff could have a wide-ranging or limited result.  For example, if the Supreme Court opts for a limited ruling, it might uphold the state of Colorado’s right to designate LGBTQ status as a protected class under state law.  A more expansive ruling may extend federal civil rights protection to LGBTQ persons in places of public accommodation and explicitly prohibit private businesses from discriminatory practices on that basis.  The Supreme Court made a similar ruling in regard to race in Heart of Atlanta Motel, Inc. vs. United States (1964). 

It remains to be seen what the Supreme Court will do.  If the Court rules in favor of Masterpiece Cakeshop, it would establish a tragic setback for LGBTQ rights in the United States.  A partial long-term legislative solution to cases like Masterpiece Cakeshop is for LGBTQ status to become a federally protected class, akin to race and sex, and enforced as such.  This change seems unlikely at the congressional level in the near term, but is certainly possible in the long-term.  In the meantime, we await the Court’s decision.