A Menial Legal Dispute Could Set the Battle for Civil Rights Back Decades

By Craig Benedict, a retired Assitant United States Attorney for the Northern District of New York

In 1963, Martin Luther King paraphrased writings by a 19th century theologian when he proclaimed: “The arc of the moral universe is long, but it bends toward justice.” Just how quickly that arc bends will be very much tested as the Supreme Court soon considers the case, Masterpiece Cake Shop v. Colorado Civil Rights Commission. This case will test whether individuals and companies engaged in everyday public commercial activities can, on religious grounds, refuse to provide goods and services to lawfully married same-sex couples. Colorado has a statute applicable to all non-religious commercial establishments that prohibits discrimination based on race, religion, sex, or sexual orientation. The owner of the shop refused to provide a cake for the wedding reception of a gay couple because, he said, to do so would violate his religious beliefs against homosexual marriage. Thus, the Supreme Court will now confront an issue that many in the civil rights movement thought had been firmly resolved against prejudice in the face of claims of religious entitlement to deny services. While Supreme Court cases, discussed below, should provide broad protection against this type of discrimination, as is described toward the end of this article there is a genuine reason to worry. That is, there is a reason to fear the Court may create a loophole that will swallow up decades of established law protective of a wide array of rights Americans now take for granted. 


     In an unbroken line of cases since the 1960s – when segregationists tried to exclude African-Americans from everyday commercial establishments – the Supreme Court has made clear that First Amendment religious protections (and other constitutional rights) cannot be used as swords to continue to advance prejudice. It did so notwithstanding the recognition that freedom of religion is one of America’s most fundamental rights. The Court recognized the distinction between religious liberty – that is, freedom of religious thoughts and beliefs – and the ability to engage in conduct that harms others. The Court worked through these potentially competing values in a series of cases following the passage of the Civil Rights Act of 1964, when Congress sought to rectify, “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”  


     Resolution of the tension these competing foundational values hold is famously illustrated in Newman v. Piggie Park Enterprises, where, in 1968, the Supreme Court considered the policy of a South Carolina barbeque chain that excluded blacks. The chain’s owner asserted his First Amendment religious freedom to do so. In recognizing the owner’s absolute right to believe whatever he wished, the Court adopted the reasoning of the trial court which held: “[The restaurant owner] has a constitutional right to espouse the religious beliefs of his own choosing; however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”


     In an equally famous 1964 case, Heart of Atlanta Motel v. the United States, the Supreme Court barred on commerce clause grounds the exclusion of African-Americans from establishments providing overnight lodging to the public. As Justice Goldberg explained, “the primary purpose in banning discrimination in public places is “the vindication of human dignity and not mere economics.” The Court found support for its position in the Senate Committee Report on the Civil Rights Act, which stated: “Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.”


     While cases from the 1960s focused primarily on racial discrimination, by the 1990s courts began to see cases that raised similar issues in the context of who Americans choose to love. As with all changes in societal attitudes, it took some time.  Many prejudiced acts occurred across the nation (and are still occurring) that deprived citizens within the LGBT community of basic rights and freedoms. In 1992, in a remarkable, retrograde majority vote, citizens of Colorado approved an amendment to the state constitution that forbad government action to protect gays and lesbians from discrimination. Legal challenges immediately followed. In 1996, in Romer v. Evans, the Supreme Court invalidated that amendment. Justice Kennedy, who is the crucial swing vote in an otherwise often deadlocked Supreme Court, wrote the majority opinion. He stated, “The Colorado Constitution classifies homosexuals…to make them unequal to everyone else. This Colorado cannot do.” 


     By 2003 – showcasing the relatively quick change in views toward gay people – in Lawrence v. Texas, the Supreme Court reversed a 1986 ruling that had upheld the prosecution of individuals who engaged in adult consensual gay sex. The Lawrence decision held that the prior 1986 decision had been wrong when decided, and remains wrong.  With remarkable speed thereafter, society began to recognize that members of the LGBT community are our friends, neighbors, co-workers, and, often, part of our families. The supportive legal decision followed.


     Lawrence and sundry lower court decisions set the scene for the seminal 2015 decision, Obergefell v. Hodges, in which the Supreme Court ruled that Americans of the same sex have the “fundamental” constitutional right to marry. This groundbreaking decision led both to broad acceptance in American society of same-sex couples and, as occurred following civil rights decision in the 1960s, pushback by those fervently opposed to the change. That pushback has been painful for those who thought they had won the right to finally be themselves in a country that celebrates individuality and freedom. 


   So, why given the decisions discussed above should Americans be worried that the Supreme Court is on the precipice of a major retreat from decisions banning prejudice against racial and LGBT minorities? First, it is surprising that the Court chose to accept the case, despite a well-settled law on prejudiced acts versus religious beliefs. While the Court has had a generally conservative makeup for many decades, it has undergone a membership change. It is increasingly broadly supportive of expansive religious freedoms pursued by conservative litigants. Justices Kennedy, Thomas, Alito, Roberts, and Gorsuch (before he was elevated to the highest court) have pushed the boundaries of such freedom, often to the detriment of other important competing constitutional values. Witness the 2014 Hobby Lobby decision, in which the Supreme Court held that a privately owned corporation (a non-sentient legal entity) could be deemed to possess, and therefore assert, its own religious beliefs about the sinfulness of contraceptives, under a federal religious protection statute. The Court upheld Hobby Lobby’s position even though such corporate “beliefs” were contrary to the those of some individual human employees. The Court permitted Hobby Lobby to deny workers access to medical plans that covered contraceptives. Notably, Justice Kennedy (the author of the gay rights decisions) voted with the conservative members of the Court. 


     Second, cultural conservatives have learned from prior setbacks to plan legal attacks with great care. The owner of Masterpiece Cake Shop asserts his First Amendment right in the narrow context of his freedom not to express support for gay unions in violation of his religious beliefs. He argues that having to decorate a wedding cake for gays forces him to affirmatively express a view his religion forbids. Never mind that the owner declined to provide the couple any cake, whether or not it had any writing on it (expressive or not), and that he refused to previously sell lesbians plain cupcakes for their commitment celebration. While the owner’s legal team cleverly endeavors to portray this case as one narrowly limited to compelled, affirmative expressions of support for gay unions, no one should be fooled about what is at stake. In order to gain a foothold for virtually unlimited rights to engage in acts of prejudice and exclusion on religious grounds, conservative legal strategists are wisely endeavoring to first craft a purportedly tiny exception to prior legal precedents. It is unmistakable that such an exception risks breaching the dam protecting Americans of nearly every sort from prejudice. 


     If the refusal to perform “expressive” commercial acts (for example, selling a cake) on religious grounds is protected under the First Amendment, so too might be countless other acts, so long as the reason for the refusal is properly characterized. Such easy-to-articulate justifications will open the floodgates, and in so doing irretrievably damage American society. Might not a drugstore clerk hold a sincere religious belief that she is prevented from selling contraceptives to an unmarried person because the sale would “express” her support for “illicit” sex? Might not a hotel manager deny a room to an interracial married couple because the renting would constitute an affirmative demonstration of support for their union? And might not a Christian adoption agency deny a child to a Jewish or Muslim couple because of the agency’s belief that children must be taught Jesus is the savior of mankind, and the adoption would, therefore, express a rejection of Christian tenants? 


     By returning to the Supreme Court cake case, an answer may be suitably derived. When competing constitutional values are squarely in conflict, resolution at times requires that one value succumbs, at least in part, to the other. The Supreme Court has long held that the First Amendment is not unlimited (no falsely yelling “Fire!” in a crowded movie theater), and that incidental restraint on personal freedoms are at times permitted and, indeed, necessary within a civilized society (the right to freely swing your fist stops at the beginning of another person’s nose). In the context of selling a cake, one might reasonably ask who is expressing the wish, if any, placed thereon. Whether it is a message of “Congratulations Charlie and David,” “Happy Birthday Mohammad,” “Happy Bar Mitzvah David,” and on and on, no one really believes that it is the company or individual making the cake, rather than the family and friends who order it, who are expressing the congratulatory thought. Similarly, one who serves food, rents out a motel room, sells a contraceptive, etc. may harbor personal prejudice against those to whom they provide a service or sell a product, but the provider is not fundamentally expressing support for the conduct of others in doing so. Indeed, all across the nation each day, millions of Americans engage in commercial activities with neighbors and strangers whose conduct they may view on some level with religious disapproval, just as the purchaser of a product or service may equally disapprove of the clerk or the store manager.


     To the extent that there may be some incremental impingement on the completely unfettered discretion of a prejudiced individual to control the world around him, such is the price we pay for living in a vibrant, multi-cultural, diverse society, filled with competing whims and wishes. Just as the Civil Rights Act was not about the sale of barbeque and the rental of hotel rooms, Masterpiece Cake Shop is not about the cake. It is about human dignity. The decision to allow our fellow citizens the equal dignity to which we all aspire – and which we protect through the elimination of discrimination in public places – is fundamental to America. Supreme Court oral argument in the Masterpiece Cake Shop case will be held on December 5, 2017. Listen closely to the news to try to determine if Justice Kennedy tips his hand. His vote will likely determine whether the arc of the moral universe swings this year more closely toward justice.