On Momentous Anniversary, LeGaL is Deeply Concerned About Where the U.S. Supreme Court Might Be Headed

Today, on the anniversary of the landmark United States Supreme Court gay rights decisions in Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015), the Court granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and will hear the case in its next term. The fact that the Court has agreed to hear a case with such a disconcerting legal theory behind it is alarming to the LGBT Bar Association of Greater New York (LeGaL).

Colorado’s Anti-Discrimination Act, like the public accommodations laws in New York and many other states, prohibits businesses that sell goods to the public from discriminating based on race, creed, sex, and other protected characteristics. In 2008, the Act was expanded to prohibit discrimination based on sexual orientation. In this case, the Act was applied to a commercial bakery that refused to sell any wedding cake, of any design, to any same-sex couple.

Acting on complaints filed by a gay couple, the Colorado Civil Rights Division concluded that the claims of unlawful discrimination were supported by probable cause, because the two men are members of a protected class and had been denied a type of service usually offered by the bakery, under circumstances that gave rise to an inference of unlawful discrimination. That ruling was affirmed by a Colorado Administrative Court judge, the Colorado Civil Rights Commission, and the Colorado Court of Appeals. After the Colorado Supreme Court declined to take the case, the bakery asked the U.S. Supreme Court to grant review, arguing that applying Colorado’s public accommodations law to compel a bakery owner to decorate a wedding cake violates the Free Speech and Free Exercise Clauses of the First Amendment.

LeGaL wishes the Court had not opened the door to possibly endorsing such a radical First Amendment theory, but now that it has, we will join our partners in the movement to urge the Justices to uphold the application of Colorado’s Anti-Discrimination Act here. Every court across the country previously faced with a similar question has agreed that there is no constitutional religious exemption to public accommodations laws prohibiting businesses from refusing to serve same-sex couples. LeGaL sincerely hopes that the days when a party can go to the U.S. Supreme Court to obtain a First Amendment opt-out of an otherwise generally applicable antidiscrimination law protecting the LGBT community are over.