Masterpiece Cakeshop v. Colorado Civil Rights Commission
Justice Neil Gorsuch
The Supreme Court recently heard arguments in the Masterpiece Cakeshop v. Colorado Civil Right Commission. I thought these issues had already been decided but I guess I was wrong. The case centers on an anti-gay baker in Colorado who claims a First Amendment right to ignore state law and refuse service to same-sex couples. A key issue in Masterpiece is just how far the court’s conservative justices are willing to go in subverting civil rights law to protect the freedom to discriminate. Here is my opinion on the matter:
Restaurants are considered places of public accommodation. The primary purpose of a restaurant is to sell food to the general public, which necessarily requires them to follow equal protection laws. The Equal Protection Clause of the 14th Amendment prohibits states from denying any person within its jurisdiction the equal protection of the law. The laws of a state must treat an individual in the same manner as other people in similar conditions and circumstances. A violation would occur, for example, if a state prohibited an individual from entering into an employment contract because he or she was a member of a particular race. Furthermore there would be a violation if a restaurant owner refused service to a person because of their race.
These rights are spelled out in the Federal Civil Rights Act of 1964 which prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law. The federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law. However, about 20 states, including New York and California, have enacted laws that prohibit discrimination in public accommodations based on sexual orientation. Colorado also happens to be one of those states.
Colorado law prohibits discrimination in places of public accommodation based on marital status or actual or perceived sexual orientation. According to the Colorado Anti-Discrimination Act, “sexual orientation” means heterosexuality, homosexuality (lesbian or gay), bisexuality, and transgender status. Transgender status means a gender identity or gender expression that differs from societal expectations based on gender assigned at birth.
Therefore, the Colorado baker has clearly violated the civil rights of the gay couple and is violation of Colorado law. At issue before the Supreme Court is whether the baker’s right to free speech is being violated. Enter Justice Neil Gorsuch.
Gorsuch queried the Colorado Solicitor General Frederick Yager regarding the remedy imposed on Jack Phillips, the baker. His concern was that Phillips was to provide comprehensive training to his employees. Gorsuch viewed this as compelled speech which might possibly violate Phillips’ free speech. Yager responded by saying training is a common remedy in civil rights cases.
Gorsuch continued his questioning, “But this isn’t attending your training. The order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in a way that maybe offend his religion and certainly compel him to speak.”
This theory could seriously undermine civil rights law and have far reaching effects.
It is not unusual to have conflicts with respect to civil rights between parties. That’s why we have judges and trials to help sort these things out. My own view is that if you are in business to serve the public you must do so without discrimination. If you can’t or won’t, even for religious reasons, you have no right to be in business and you should close up shop and go home.
We are a secular country here in America with a clear separation of church and state. When you operate a commercial enterprise in the public sphere you must leave your religion at home if it causes you to discriminate against the public. When you are in business to serve the public you must serve all the public.