SCOTUS ruling for Masterpiece Cakeshop and Arlene’s Flowers requires increased vigilance of marketplace discrimination

SCOTUS ruling for Masterpiece Cakeshop and Arlene’s Flowers requires increased vigilance of marketplace discrimination

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Earlier this month, the Supreme Court ruled narrowly in favor of Masterpiece Cakeshop owner Jack Phillips in his anti-LGBTQ discrimination case. In the 7-2 opinion, the court ruled Phillips had not received fair treatment for his religious beliefs by the Colorado Civil Rights Commission. The majority justices held that, based on the language used by the CCRC in formal public hearings, the Commission held animus against Phillips’ religious belief that he could not bake a wedding cake for a same-sex couple, calling his beliefs rhetorical and despicable, and comparing them to defenses against slavery and the Holocaust.

Then, just three weeks later, SCOTUS granted the appeal of a Washington state florist, Barronelle Stutzman, who maintained providing flowers for a same-sex wedding in 2013 went against her religious beliefs and her “relationship with Jesus Christ.” SCOTUS vacated the Washington state Supreme Court’s ruling against Stutzman, sending the case back to the lower court to be reconsidered in light of the Masterpiece Cakeshop opinion.

While I agree that the holding was narrow, LGBTQ individuals have reason to be concerned. The lack of clear guidance from SCOTUS in religious-freedom-to-discriminate cases risks undermining the very foundations on which this country’s civil rights were built. 

President Trump has appointed several conservative federal judges to the bench and, by pushing decisions back to lower courts, it gives the opportunity for these conservative judges to side with anti-LGBTQ activists and set precedent in circuit courts, as well as give anti-LGBTQ activists who only read headlines reason to think they’ve won a “license to discriminate.”

Neither SCOTUS ruling decides the major question: Do “sincerely held religious beliefs” supersede the rights of LGBTQ citizens to conduct business in public accommodations with dignity, free from harassment and discrimination? While LGBTQ advocates find the Masterpiece Cakeshop decision disappointing because it didn’t set precedent regarding discrimination against LGBTQ people on religious grounds, the worst also did not happen: SCOTUS did not agree with Phillips that religion is grounds to refuse service to same-sex couples.

Two dissenting justices, Ruth Bader-Ginsburg and Sonia Sotomayor, blasted the majority opinion’s reliance on a case in which the CCRC ruled in favor of bakers refusing to bake a cake for someone else under different circumstances: that of William Jack.

In Jack’s case, the cake he requested included hateful, antigay messages. Ginsburg stated the bakers in that case treated Jack as they would any other customer requesting the same service, refusing the messages on the cake, not his religious beliefs behind the request. Ginsburg stated, “The bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no other reason than their sexual orientation, a cake of the kind he regularly sold to others.”

What is most striking and pointed out in the dissents is that Craig and Mullins were denied services long before they were able to articulate what they wanted the cake to look like, negating the similarity and comparison to William Jack’s case entirely.

So, yes, the holding in Masterpiece Cakeshop was narrow, but do not kid yourselves: It will have, and already has had, an impact on the LGBTQ movement. While these rulings have not changed laws affecting LGBTQ citizens, they present a serious risk of undermining civil-rights law in the name of religious freedom. It will invite further lawsuits for the courts to consider, and, given there are cases around the country for photographers, calligraphers and printers already raising this same question, SCOTUS has not given adequate guidance.

Second, those cases working through the courts now, and potential future lawsuits, will be heard by lower courts, leaving interpretations up to federal judges who’ve been appointed by the Trump administration, who are significantly more conservative and sympathetic to the religious right. This leaves the LGBTQ population particularly vulnerable.

Third, anti-LGBTQ advocates everywhere will be further emboldened to discriminate against LGBTQ citizens, and likely won’t take the time to read the nuanced opinions and facts of the Masterpiece Cakeshop case. They won’t consider this very-narrow ruling for what it is, instead interpreting it as a sweeping “license to discriminate,” and further dividing us as a country.


There is no better time to dust off complacency and rise in solidarity than Pride Month.  We, meaning both LGBTQ individuals and our allies, must go to the voting booth at every opportunity and vote for candidates that authentically back our principles and values. Then, we must pressure those lawmakers to add sexual orientation and gender identity into states’ protected classes to ensure that the religious right to discriminate is not held higher than our civil rights.  Before Pride was a parade, it was a march.  We marched and protested to win every single advance we’ve gained since Stonewall, and we need lawmakers who aren’t afraid to stand with us and recognize us as full and equal citizens in the eyes of the law. November elections are almost upon us, and those with the responsibility to write and enact our country’s laws need to hear us coming. 


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