BY DON HOLLADAY
While the nation’s attention stays focused elsewhere – dangerous name-calling games with North Korea, foreign policy blunders, Russian meddling, and the plight of hurricane disasters victims – the president and Attorney General Jeff Sessions are methodically carrying out an agenda to dismantle the rights and protections of gay and transgender Americans.
The scope of their activities has been massive – executive orders rescinded, public education guidelines withdrawn, and the reversal of a federal policy that protects these Americans from discrimination under Title VII of the 1964 Civil Rights Act.
Now, our nation’s highest law enforcement officer has sought out and found an opportunity to undermine the equality of same-sex marriages because of one’s “sincerely held religious beliefs.”
In a case to be heard by the Supreme Court this term, the Department of Justice [DOJ] has filed an amicus brief urging the nation’s highest court to redefine commercial “speech” in the public marketplace to make room for the protection of religious beliefs against same-sex couples. The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.
The lawsuit arose after a gay couple asked a Denver-area bakery to make them a wedding cake. The baker refused, citing a religious objection to same-sex marriage.
Colorado is one of 19 states, along with the District of Columbia, which has laws specifically prohibiting discrimination based on sexual orientation by places of public accommodation. A complaint was filed with the Colorado Civil Rights Commission, which found the bakery was violating Colorado law. Appeals followed, and every court rejected the bakery owner’s argument that he had the right to discriminate based on religious and free speech grounds.
The Supreme Court has agreed to hear the case, and the DOJ has joined forces with the baker, arguing that the First Amendment provides a religious exemption to Colorado’s anti-discrimination laws when a person’s faith prohibits endorsing same-sex marriage, and the goods and services being purchased are a form of “speech” or artistic “expression.”
According to the DOJ’s brief, a wedding cake is not an ordinary baked good, but is “more communicative and artistic than utilitarian.” As such, DOJ argues, the First Amendment bars the state of Colorado from requiring the baker to design cakes bearing messages that violate “sincerely held religious beliefs.”
In the view of the DOJ, the central issue is all about accommodating constitutionally protected religious freedom and free speech under the First Amendment.
Seemingly, the Trump Administration’s religious freedom/protected speech argument would extend far beyond just a wedding cake. It would undoubtedly cover cakes baked to celebrate a same-sex couple’s baby, the couple’s baby-shower cake, and the first birthday. And then the question becomes, what’s next?
Could “sincerely held religious beliefs” against interracial marriages by a baker, florist, hair stylist, tailor, creative chef, graphic designer, or other artistic business owner be somehow distinguished? If not, what would future cases be about under the Trump Administration’s proposed redefinition of commercial speech?
For example, presumably there are many Christian business owners with artistic-type skills who profess sincerely held religious beliefs against believers marrying non-believers, as well as those who hold religious beliefs against couples who do not accept Christianity’s plan of salvation. Would a different baker, florist or hairstylist be able to turn away atheists, Muslims or Jews based on such “sincerely held religious beliefs”?
At the least, if the Supreme Court were to accept the AG’s argument, but somehow restrict it narrowly to only allow unequal accommodation for same-sex couples in the public marketplace, America’s value system would still take a long step backward.
The Supreme Court has already ruled in favor of full marriage equality. Most citizens accept and approve that decision. Does the Trump Administration and AG Sessions think that we as a country now want signs sprinkled among windows on Main Street reading “Heterosexual Couples Only” for services offering wedding catering, specialty menus, floral designs, and the like? If so, they are deeply misguided.
Long ago, this country decided that businesses open to the public should be open to all the public. The federal Civil Rights Act of 1964 barred race discrimination in places of public accommodation.
After enactment, some argued that the law violated their sincerely held religious beliefs about mixing of the races. Some restaurants wanted to continue having the right to serve only whites. Some movie theaters wanted to continue the practice of segregating patrons.
We as a nation opted for another view: denying access to public services and accommodations to persons because of who they are is a deprivation of personal dignity.
Our president and attorney general have shown little respect for this nation’s heritage when it comes to equality and treatment of vulnerable segments of our society. No Americans should have to wonder whether they will be welcome at the doors of any business open to the public, or whether they will be treated as second class outcasts.
For all minorities – not just the LGBTQ community – these are dangerous times. The federal government’s attempt to dismantle anti-discrimination laws in Masterpiece Cakeshop is just one example.
– Norman attorney Don Holladay served as lead counsel for two Tulsa County couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, in the landmark federal lawsuit that guaranteed marriage equality