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Legal AnalysisMarriage Equality

The Snakes Surrounding Marriage Equality, Pt. 1

By June 22, 2018No Comments

We would usually post a rainbow or something uplifting for PRIDE, but this month, we’ll leave rainbows for the parade…

Because, ironically, as we celebrate PRIDE 2018, the LGBTQ community is facing  an erosion of rights established by long and hard-won battles. So, as I join the community in celebration, I also underscore the “not quite” response I gave to colleagues, who, when Obergefell v. Hodges was decided, quipped that the LGBTQ community’s issues with respect to discrimination were primarily over.

Like so many groups that continue fighting discrimination – explicit and implicit, the LGBTQ community will score one victory against the venomous discrimination snake just to see the head of another emerging from its hole. Furthermore, because several respected institutions that once stood for “justice for all” are now politicized and fractured, I recently shared analyses of the marriage equality jurisprudence post Obergefell to emphasize that discrimination against LGBTQ families and individuals is still rampant:

Post Obergefell Challenges: First Amendment Constitutional Claims

When I first read the Masterpiece Cakeshop pleadings, the short hairs on the back of my neck stood up. And as I presented this case the morning of June 4, lightning struck those hairs as my concerns, unfortunately were shown to be well-founded.

The issue in Masterpiece Cakeshop, Inc. v. Craig and Mullins was whether an exception in Colorado law prohibiting sexual orientation discrimination could be made because of a business owner’s religious beliefs. That discrimination against customers should be illegal is a no-brainer, right? Well…

Jack Phillips, owner of Masterpiece Cakeshop, refused to make cakes for LGBT couples because of his religious beliefs. LGBTQ couples filed a complaint against Phillips with the Colorado Civil Rights Commission, arguing that Phillips’s refusal to bake cakes for the LGBTQ community violated Colorado’s state law that prohibits discriminatory action based on sexual orientation. Phillips’s response was audacious: Instead of denying his actions were discriminatory, he asked that his behavior as a business owner in the marketplace be excused because his business was small and too inconsequential for the State to be concerned with. Phillips’ overall contention amounted to a legal, ‘so what?

The couples disagreed with Phillips’s minimalist argument, responding that (1) the discriminatory action has been illegal since the 1960s; and (2) Phillips’s religious beliefs could not be allowed as a basis to create an exception because the history of intolerance based on religion illuminates the horror such unfettered intolerance has wrought. The Commission found in favor of the couples. Score one for the good guys. Phillips, of course, appealed.

On appeal, the couples’ brief explained how debate has continued regarding religious beliefs and discriminatory action but the law was clear: Action such as Phillips’s was illegal in the marketplace. Also, Phillips’s contention the State’s interest was marginal was bunk because Colorado has thousands of LGBTQ residents and families, despite the fact that Colorado has a storied history with respect to its discrimination against the LGBTQ community. Yet, even setting that fact aside for the sake of argument, the additional fact that the commercial marketplace must be open to all, free of discrimination, still remains. Business owners’ religious beliefs should not determine the sales strategy of a for profit, commercial enterprise. To allow such discriminatory action would undo more than 50 years of precedence. The Colorado Appellate Court agreed. Score two for the good guys.

However, one could already see the snake tracks of discrimination heading toward LGBTQ rights after the Hobby Lobby decision was announced in light of Windsor. In Burwell v. Hobby Lobby Stores Inc., the U.S. Supreme Court examined 2 for-profit, closely-held corporations’ claims that the Religious Freedom Reformation Act’s mandate to provide healthcare, including access to contraceptives, violated the corporations’ First Amendment and statutory rights to freedom of religion by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, and related education and counseling. The Court, taking a bite at women’s reproductive rights – or more broadly, individual rights – ruled in favor of the corporations.

The Roberts Court is becoming known for its narrowly drawn Opinions, such as the Hobby Lobby decision, addressing one part of a case, while ignoring another. So, when deliberating Masterpiece Cakeshop, the Court’s majority, as I feared, slid in discrimination, couched in religious freedom, by focusing not on the Appellate Court’s review but on the Colorado Commission’s hearing. During the Commission’s hearing, hearing officers deliberated aloud, indicating they held a bias in favor of business persons keeping their religious feelings to themselves when serving the public in commercial settings, comments that the Court reasoned undermined Phillips’s Due Process rights.

Remarkable! Phillips admitted he discriminated and so what; hearing officers rebuke this lack of respect for equality that is – or was – the law; and the U.S. Supreme Court glides past the fact that the Appellate Court’s decision was reviewed according to all the facts and law notwithstanding the Commission’s hearing, used the hearing officers’ vocal comments made in a public hearing, comments steeped in a half-century of law, to actually weaken that half-century jurisprudence.

The day Masterpiece Cakeshop’s ruling was announced, legal analysts shouted over the airwaves that the decision was not very meaningful because it was decided narrowly. However, Plessy v. Ferguson was also decided on narrow grounds and has yet to be expressly overturned. Also, as Justice Harlan explained in his dissent in Plessy, the U.S. Supreme Court is the final arbiter of American law and its rulings, broad or narrow, affect laws and public policies for decades if not centuries.

The majority Opinion also slipped in a state’s rights argument allowing for “outcomes for cases like this” to be decided by other courts, thereby creating a vein through which discriminatory, poisonous actions can run through our country with little impediment or cure.

And so marches for equality must continue until celebrations can be fully enjoyed, without fear of snakes paralyzing equality jurisprudence.

Snakes, Pt. 2 – About the Children…

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