America is becoming more accepting of same-sex couples, with the 2015 Supreme Court decision legalizing same-sex marriage nationwide and, more generally, an increase in individuals identifying as LGBT in recent years.
However, this didn’t stop Masterpiece Cakeshop from refusing to sell a wedding cake to a gay couple five years ago. Since then, the case has made its way to the U.S. Supreme Court after the Colorado Court of Appeals found that the bakery unlawfully discriminated based on sexual orientation.
The bakery owner asserts it is his constitutional right of freedom of religion and freedom of expression to discriminate based on sexual orientation, although it violates the Colorado state law that prohibits such discrimination.
If the Supreme Court rules in the owner’s favor, the floodgates will open to many other cases of discrimination. In other words, if the Supreme Court rules in the bakery’s favor, public businesses will have a constitutional right and precedent to discriminate based on whatever they deem against their beliefs. Forget the Civil Rights Act, forget anti-discrimination laws, forget equal treatment. A business can deny you simply because something goes against their beliefs.
In the past, the Court has ruled there are limitations to the First Amendment. Can an owner refuse to serve black customers if it goes against their religious beliefs to serve them? No. The Supreme Court ruled in Newman v Piggie Park Enterprises, Inc. that the owner’s right to religious freedom was not protected if he discriminated against customers based on race. This is no different.
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What about how, in the 1970s and 1980s, employers claimed they could pay women less than men because of the popular belief that men should be the head of the household? The courts have ruled that religious views, although protected, do not warrant the right to discriminate.
I, for one, would not want to live in a country that allows individuals to impose their beliefs on the public and deny a paying customer because who they love.
The bakery owner also argues that because baking and decorating a cake is an artform, it violates his freedom of expression to create a cake for a gay wedding. However, the First Amendment only protects content inherently expressive or meant to send a message. When someone sells a good to a customer, they are simply providing a service.
Moreover, the owner “categorically refused” to accept the cake order without any discussion of “what the cake would look like.” Additionally, the owner was “not asked to apply any message or symbol to the cake.” The Colorado Anti-Discrimination Act does not require him to write “God Bless this Gay Marriage” on the cake, nor was he asked to do so by the customers. The owner may have the right to pick their message, but not to the right to choose customers based on sexual orientation.
Colorado ensures its citizens may purchase goods and services even if they do not look, or love, or worship like the vendor. As one of the amicus briefs states, the baker can choose to make the cake in whatever expressive way he wants — he can choose the design, for example — but he cannot refuse to sell to someone based on sexual orientation.
There is no right to discriminate based on Freedom of Expression. Floyd Abrams is the nation’s most prominent First Amendment lawyer and almost always favors the side of the those claiming First Amendment protection. In this case, he does the opposite.
Abrams said, “Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people? Could a musician invite the world to his studio where he wrote songs about them for a fee but refused to do so for Jews or Muslims? The First Amendment protects a lot, but not that conduct.”
Many people participate in expressive conduct. Many people have deeply held beliefs. If those beliefs or expressions gave anyone and everyone the right to discriminate, then anyone could discriminate on the basis of anything. Think about that next time you walk into a store and expect service.
Claudia Koechell ([email protected]) is a sophomore majoring in history and political science. She is the press secretary for UW College Democrats.