Yesterday, the National Women’s Law Center filed a friends-of-the-court brief, on behalf of 40 groups fighting for women’s rights, in the Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission case pending at the U.S. Supreme Court. In this case, a company seeks to discriminate against David Mullins and Charlie Craig, a same-sex couple in Colorado as they were shopping for a wedding cake with Craig’s mother, Deborah Munn. When the bakery owner learned that the cake was for a wedding reception, he refused to sell them a cake. The laws of Colorado, and indeed of several states, explicitly provide civil rights protections for LGBTQ individuals that prohibit this type of discrimination. Given these legal protections, it should be unthinkable for a business owner to discriminate against any same-sex couple trying to purchase a cake for their wedding reception. But this business argues that it has a constitutional right to discriminate based on the owner’s religion and the First Amendment.
What an awful time to encounter discrimination — when one has found a loved one to marry and is out shopping for a wedding cake, and with one’s mom no less. For those of us who have had the pleasure of this experience, it can be one of the happier moments in our lives. I remember looking at wedding cakes when I lived in Brooklyn, New York and purchasing a white cake with red and orange paisley designs for my own wedding cake. It’s painful to think that a bakery could have legally turned my spouse and I away and refused to sell us a cake for our wedding day, of all days, just because of who we are.
Of course, however, this is not only about bakeries and wedding cakes. It is about access to hotels, health coverage, jobs, education and more. Think of all the ways our country’s laws have evolved to establish these fundamental antidiscrimination norms: Restaurants may not refuse service to African-American customers. Employers may not deny jobs to women even if they believe women belong in the home. Colleges can’t kick out students because they become pregnant. Allowing this company to assert a constitutional right to violate antidiscrimination laws and refuse to provide a wedding cake to this same-sex couple could begin to unravel civil rights gains across the board.
The Department of Justice, in its brief filed on behalf of the U.S. government in this case, argues that companies providing so-called “creative” services have the free speech right to disregard antidiscrimination laws and that these exceptions to civil rights laws would not apply to all companies. However, that is not a workable approach to civil rights enforcement. Almost any company can argue that its work is creative –just imagine, companies making floral arrangements, tailored suits, catered lunches and so on. This is not a legal argument that makes sense or one that is feasible to implement. Can you imagine if every company that wanted to discriminate against members of the LGBTQ community, or any marginalized group for that matter, could simply argue that its work included some level of creativity? The approach suggested by the U.S. government here is not workable and must be rejected. Similarly, courts have repeatedly concluded that religious beliefs are not a legitimate basis for businesses to disobey antidiscrimination laws. Often, these cases appeared in the contexts when business owners tried to discriminate against women based on the owner’s religious views or through First Amendment arguments. As outlined in our brief, courts have repeatedly rejected these arguments there and must do so now.
As the daughter of immigrants and a member of a same-sex and inter-racial couple, I am grateful to live in a nation that does not allow businesses to refuse service to individuals of a particular race, national origin or religion; where it is illegal to refuse service to inter-racial couples, to inter-faith couples and to anyone else who does not replicate the so-called mandates of who we are allowed to fall in love with or to call our family. Through NWLC’s filing in the U.S. Supreme Court, these 40 organizations dedicated to women’s’ rights join all of the other voices speaking up for the just enforcement of civil rights laws for all constitutionally protected groups, including women and members of the LGBTQ community.