In early December, SCOTUS heard oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission. The crux of the case is that bakery owner Jack Phillips sued the CCRC claiming his rights to freedom of religion and freedom of speech have been denied when he refused to bake a custom wedding cake for a gay couple, Charlie Craig and David Mullins. Citing his religious beliefs that marriage is between one man and one woman, Phillips claims that because he sketches and sculpts his culinary creations, he’s an artist. Therefore, forcing him to make these cakes violated his right to free expression, speech and religious freedom.
Expert analysts on the cases’s oral-arguments phase speculate that the conservative justices are leaning in favor of Phillips, with Justice Anthony Kennedy being the key vote, though his questions at times seemed favorable to both sides, making it difficult to determine where he might land. We won’t get a ruling until summer, according to the SCOTUSblog, so this leaves plenty of time to consider what a ruling in favor of Masterpiece Cakeshop would do to businesses across the country.
Among the ways the justices could rule in this case, two in particular would change the way we do business. First, the Court could favor the narrow definition that Phillips’ cakes are artistry, and therefore he cannot be compelled to create art that violates his religious freedom and free speech. This decision would lead to an onslaught of cases to determine the definition of “artistry” in commerce. Are bartenders or chefs considered artists? If so, that means we could be denied a cocktail at R2L or a meal from the chef of Bibou. Second, the Court could find that any business owner with a faith-based objection to serving the LGBT community has grounds to legally refuse that service.
For a moment, let’s consider one of these two arguments is the finding of the Court. Justice Kennedy speculated that ruling in favor of Phillips would result in a deluge of petitions to bakers and other creative wedding vendors — florists, photographers, makeup artists — to cease providing their products and services to the LGBT community, leaving us with little in the way of choice should those business owners comply. In less-populated areas, this could be problematic, not only in terms of finding businesses that don’t discriminate against us, but with scheduling as well. Wedding vendors book up months, if not years, in advance. If there are only one or two bakeries in an area that do wedding cakes, and the one LGBT-friendly option is booked for a couple’s wedding day, where does the couple turn? And that’s just one vendor. What about photographers? Caterers? Florists? Planning a wedding with LGBT-friendly vendors becomes a much greater burden and could ruin what is otherwise supposed to be the best day of a couple’s life.
Anything short of a ruling completely in our favor will not bode well for the LGBT community.
In previous court cases, SCOTUS has held that “not all burdens on religion are unconstitutional and that [t]he state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” In the case of Newman v. Piggie Park Enterprises, the Court determined that compelling the service of food to a black man was in the government’s overriding interest despite the defendant arguing that the bible prohibited the interaction of different races. For commerce and the economy to hum like a well-oiled machine, the Court has decided the government has a compelling interest in seeing discriminatory behavior is kept to a minimum, at least in the case of race. Justice Sotomayor, during the Masterpiece oral arguments, commented, “We can’t legislate civility and rudeness, but we can legislate behavior.”
As a member of the National Gay and Lesbian Chamber of Commerce and the Independence Business Alliance, Philadelphia’s LGBT Chamber of Commerce, I intend to run my business on the basis that we are all equal in the eyes of the law. I will accept nothing less than equal treatment from those seeking my patronage as a client; and the Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling, if decided in favor of Jack Phillips, will force every business across the country to state whether they do the same.
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