Religion Cannot Be Used to Justify Discriminatory Conduct in the Marketplace

Janine Jackson: We will be talking about the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission for a long time. Denver baker Jack Phillips was determined not legally liable for refusing to sell a wedding cake to a same-sex couple. But we’re told that doesn’t mean discrimination against LGBTQ people is now legal, because in this case, the Court’s majority said, the behavior and statements from some members of Colorado’s Civil Rights Commission indicated “hostility” to Phillip’s religion—and that situation might not obtain in other cases. Is that reassuring?

Here to talk about where law meets life on these concerns is Jennifer Pizer, law and policy director for Lambda Legal. She joins us now by phone from Los Angeles. Welcome to CounterSpin, Jennifer Pizer.

Jennifer Pizer: Happy to be with you.

The Washington Post editorial was headlined “The Supreme Court’s Narrow Ruling on a Wedding Cake Is a Step in the Right Direction.” While no one doubts that things could always be worse for people who face discrimination, what is your overall response to this ruling, and what do you make of that rather sanguine interpretation of it?

Well, in our view, the Masterpiece Cakeshop decision is a mixed bag. It has some very important language in it: recognizing married same-sex couples—and LGBT people more generally—should be treated with dignity and respect, and that equality in the marketplace has been an important value, and that it’s relevant for same-sex couples seeking wedding-related goods and services, that state public accommodation or non-discrimination laws can apply and require equal treatment. That’s all very important.

It also, in some ways, should not be remarkable, because the American promise is supposed to be that everyone is equal, and there have been numerous decisions from the US Supreme Court affirming that LGBT people are Americans too, and that equal protection guarantees apply to us too. So it’s both very important and should not be remarkable. But of course, in this context of an argument about whether religious rights and free speech rights should create exceptions to allow discrimination by businesses against same-sex couples as customers, and presumably other customers, starting out with a statement that equality does apply to same-sex couples, you know, it is important.

At the same time, there are many things about the opinion, when you look more closely, that have caused us at Lambda Legal to have concern, not because the issues were decided in this opinion—because they weren’t; these important issues about the wedding cake discrimination, they were put off for another day. The issue is the amount of concern that Justice Kennedy’s opinion expressed for discriminatory views against same-sex couples because they’re religious, because they’re based in religion, and the idea that the protections that we have for religion, which of course are very important, mean that government and society in general should be giving extra respect—and perhaps deference—to these religious views that are about turning away a group of people in a business setting.

This should have been an easy case for the Supreme Court. And I say that because we have many important legal precedents, going back generations, saying that religion cannot be used to justify discriminatory conduct in the public marketplace, in public life.

You know, this is very different if you’re in your church or your religious school, your own non-business community, where people gather to share ideas and be with each other, and have important rights of privacy and free association. This is about when we’re talking about a business context.

So the Supreme Court has looked at this issue repeatedly over the years, and said race discrimination and sex discrimination, other types of discrimination, cannot be justified in a public setting by religious views that call for discrimination. The views are absolutely protected—and there’s important speech protections—but there must not be exemptions from civil rights laws for religious reasons.

And state courts have had opportunities to consider, at this point, quite a few cases about same-sex couples seeking equal treatment with respect to wedding-related goods or services, or civil union-related goods or services. And I’m talking here about California and Oregon and Washington and New York and Colorado and Hawaii, New Mexico—quite a few courts have had opportunities to look at these issues, and have concluded emphatically that these same principles that have applied with respect to other types of discrimination need to apply the same way with respect to sexual-orientation discrimination.

Now, why did the Supreme Court take this case out of Colorado? We don’t know, but we did get an indication during the oral argument that Justice Kennedy perhaps wishes that the case had not been taken. And in his opinion, he expresses a certain amount of angst, a certain amount of wringing the hands, that he is concerned about discrimination and social stigma against same-sex couples, and in particular that married same-sex couples need to be treated like other married couples. But he also expresses this concern that those who disapprove of marriage for same-sex couples for religious reasons should not be themselves made into pariahs, and should be respected.

And I think what gives us a particular concern is the difference between respecting people and their freedom to believe—and really respecting everyone, because we’re in society together, and disrespecting each other is not helpful—but that we should be able to call out, that when religious beliefs call for discrimination, we can criticize those religious beliefs. It’s not criticizing the entire faith, it’s not criticizing individuals, but to say, “We can appreciate the faith community, and the role of faith for this group of people, without having to respect and honor and defer to reasons for discriminating against people.”

And in this decision, in this Masterpiece Cakeshop decision, Justice Kennedy said that it was a real problem that it appeared that religious views for turning away a same-sex couple were not respected by the state agency that considered the civil rights complaint, and that society should be respecting the baker’s religious belief, because it’s religious. That’s inconsistent in some ways with the prior case law from the US Supreme Court, that it said religious beliefs are to be respected, but we all have to follow the law. If it’s a law that applies to everyone in a commercial sphere—it’s not picking on religion, it’s treating everybody the same—then people who want to violate the law for religious reasons nonetheless have to follow it, especially if it’s a law that protects other people. So this opinion has a solicitude for religiously based conduct that seems out of step with prior case law.

Now, the final result in the case—or the direction of the Court’s actual ruling—was to focus on the way the civil rights complaint was handled by the Colorado agency, and that gives us some additional concern. I should say: It is unremarkable, it is well-established, it is correct that a government agency must not treat any of us, having a complaint or a case in front of the agency, unequally or hostilely because of our religion. We all must be treated equally and neutrally. And Justice Kennedy came to conclude that the Colorado agency did not do that, and that the baker in this case faced hostility based on his religion.

I think if you look at the facts, that’s a peculiar, overly solicitous-to-religion approach. Because what the agency did was to find there had been discrimination when this baker refused the same-sex couple, because it violated state law, because the reason the cake was refused was because of the people, because it was a same-sex couple that wanted a type of cake that this baker would sell to anyone else, because he makes this kind of cake.

There were other discrimination complaints brought to that Colorado agency in which bakers refused cakes because what was being requested was an anti-gay message, and those particular bakers said: “Well, we don’t make messages that are negative about anyone. We just don’t make mean cakes. We make nice cakes.”

And Justice Kennedy—and a concurring opinion by Justice Gorsuch and Justice Alito—didn’t see that distinction. They saw the agency as not being evenhanded. So you’ve got a pro-gay message, you’ve got an anti-gay message, you know, they should be treated the same. Well, no, not really. I mean, at least in our view, if the distinction is, “We don’t make mean messages for anyone,” that business should be able to say that. And the distinction was about the type of message, not the type of people.

Bottom line here is that it seems that Justice Kennedy, as a jurist who cares a lot about free speech and free religion, and also has been the author of the major Supreme Court decisions recognizing the equal rights and liberties of same-sex couples, he feels torn, and appears to not quite be ready to say, the law needs to apply the same way to anti-gay religion-based behavior as the Court has said in the past about anti-black or sexist religion-based behavior. And that question was left for another day.

And meanwhile we’ve had snapshots in the concurring opinions, showing that the rest of the Supreme Court has some very divided views on how these questions should be answered. We have a clear statement by six members of the court that non-discrimination laws should protect same-sex couples, and the dignity and worth of married same-sex couples is important, and then we have different views about how to resolve a case if there really is a speech issue. If we think a cake really is an expression of endorsement of a couple, if we really think that there’s a message there that a baker is compelled to provide, and if we think that a religious basis for that message changes all the legal standards, then maybe, in a future case, future bakers would win.

It seems clear that Justice Kennedy’s not prepared to say that now, and in our view, we hope, and we will continue to advocate fiercely, that that would be the wrong answer. He seems to recognize, and he says in the opinion, that if the free speech and religious rights are not constrained, if they’re not limited properly, it leads to a host of types of discrimination, and that would be wrong.

Well, that’s correct. That’s exactly what we’re worried about. We’re worried about it because of the constant calls for help that we at Lambda Legal receive from people who are encountering discrimination in the marketplace, which frequently, unfortunately, is explained as “needed by somebody’s religious beliefs.”

So our hope is that in the time from now to whenever the next case is before the Supreme Court, Justice Kennedy will have become more comfortable with recognizing that the legal principles have to apply the same way to all religion-based discrimination. That’s really the way our country has to operate.

But we know that at least three members of the Court—Justice Gorsuch, Alito and Justice Thomas—very much disagree: They disagree with marriage equality, they disagree with other equal treatment of same-sex couples. And we don’t know where Chief Justice Roberts, Justice Kagan and Justice Breyer would come down on the core question that was presented in the cake case, may next be presented in a case about flowers or dresses or photography or printing. We don’t know, but it’s likely to come not too far in the future. There’s a flowers case that is before the Court for discussion today, in their conference meeting, a case coming out of Washington state, and there are other cases in the pipeline.

Let me draw you out on one point, because we’re talking about same-sex couples, but is it really about marriage? If two men came in in gay pride shirts, holding hands, and ordered a Fourth of July cake, are we to believe that they wouldn’t be denied? I mean, the reason that this case was supposed to swing on the baker’s free exercise of religion, that that was what was violated and not his freedom of speech, that was meant to say, “Well, no, his free speech doesn’t trump LGBTQ rights.” But are we really to believe that this is just about marriage, and that it’s not about the people themselves who are getting married? I just don’t grok that.

I think you’re exactly right. The lawyers arguing on behalf of the baker say that marriage is very special to this baker; he has particular religious beliefs about marriage, and the baker is only asking for a very narrow exception to the civil rights law. But we know from the cases we litigate, and the calls for help that we receive, that people—same-sex couples and LGBT individuals—are being refused all sorts of services; medical services and vacation lodging, access to a pediatrician, you know, being ejected from a taxicab. Unfortunately, the list goes on and on. And that was the subject of the friend-of-the-court brief that we submitted to the Court, based on our understanding, our sad understanding, our frustrated understanding, of what LGBT people encounter every day.

And as a practical matter, religious beliefs vary enormously. So this baker claims that his concern is specifically with marriage and only marriage, and he is willing to sell cupcakes and brownies and other things for same-sex couples as long as they won’t be served at a same-sex couple’s wedding. But what about the person that has a religious belief that same-sex couples are unacceptable, period, are sinful, and that selling any goods or services to such couples is “endorsing their relationship”?

The legal argument that Justice Kennedy has seemed to accept, and he accepted it in the Hobby Lobby case, in a way that was very troubling as well, is that if a person believes sincerely that they will be complicit in the sin of another person if they sell goods, or if they provide services, or if they rent an apartment, or if they keep a person as an employee, then we must be solicitous of the sincere religious belief that that person must not be complicit in somebody else’s sin.

That is different from what our law used to be. It used to be that if another person’s independent decisions were the cause of whatever the conduct was—the conduct of having a relationship without being married, or using contraception, or undergoing a gender transition—that independent decision-making cuts off the legal responsibility of the person providing goods or services.

So there’s been a change of the legal rule, and I don’t see how you cabin that changed rule. If we follow that rule, it basically would mean that a person, for religious reasons, who feels a responsibility to shun people of a different faith, or shun people in an interracial relationship, or shun a woman who’s trying to work outside the home, that we have to have solicitude for that religious belief.

And we can’t have that. Our society can’t function that way or, if it does, we’ve become a form of theocracy. We do see that form of law in other parts of the world, but it really is inconsistent with the American commitment to everyone’s freedom and everyone’s equality.

Finally, the Washington Post’s editorial ended by saying, “It might take more time, but the court is headed in the right direction.” I find it somewhat chilling how casually people are able to say, “Yeah, we’re not protecting your full human rights today, but just sit tight. We’re gonna get there.” I wonder what you make, in general, of the way media have covered this case, and this set of issues, and if there’s anything in particular that you’d like to see more of.

I think with many civil rights questions, it’s important that we substitute a similar situation and ask ourselves, “Would we accept this type of treatment of a person or a group if it was a more empowered group?” I think about that in terms of President Trump’s “Muslim ban.” There was a time during World War II when our government turned away boats of Jews trying to escape the Holocaust. It’s a reason for national shame now, but we’re doing something similar with respect to Muslims. There was a time of locking up loyal Japanese-Americans in internment camps, and we look back on that, I think most of us, with great shame.

We have too many examples in our history of treating a group unequally, saying there’s something special about their situation that justifies it, and certainly, when religion is used as an excuse—which it was to justify racial segregation, which it has been done to deny women a right to practice law—it’s a mistake, and we shouldn’t be repeating those mistakes just because it’s gay people, and because it’s only recently that we’ve won the freedom to marry for same-sex couples.

I mean, that was a violation of basic rights throughout the history of our country. The fact that it’s only fairly recently been fixed, and that some people still object and want to try to overturn that decision—we have to have as much commitment to everyone’s equality, or we will not have commitment, really, to the principle of equality. I know it gets said often, but if we’re not all equal and if we’re not all free, the equality and freedom that some others have is only tenuously held. We’re all at risk if exceptions can be made.

We’ve been speaking with Jennifer Pizer, law and policy director for Lambda Legal. They’re online at LambdaLegal.org. Jennifer Pizer, thank you so much for joining us this week on CounterSpin.

My pleasure. Great to be with you.