Trump Supreme Court could reverse gains, let businesses turn away LGBTQ customers

The U. S. Supreme Court has announced that in the fall it will hear the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case – which will have many of us LGBTQ Americans on pins and needles – will argue the parameters of the rights to practice religion and free expression enshrined in the First Amendment.

In 2012, gay couple David Mullins and Charlie Craig wanted to order a cake for their wedding reception. Though the ceremony was in Massachusetts, because same-sex marriage wasn’t legalized in Colorado until 2014, the couple decided to celebrate back home. Jack Phillips, owner of the bakery, told the couple that because of his religious views, he didn’t provide cakes for same-sex weddings.

“We do a variety of cakes. We do birthday cakes and shower cakes … We don’t do Halloween cakes and adult-themed cakes,” Phillips said.

Many conservatives call Phillips’ position not a repudiation of same-sex marriage, but a principled fight for free expression unfettered by the tyranny of political correctness.

“We at Cato have long supported both religious liberty and gay rights, insofar as the agenda of each is consistent with the liberty of unlimited constitutional government,” said Roger Pilon, founding director of the Cato Center for Constitutional Studies. “But we draw the line when same-sex couples turn around and use government to force venues against their religious beliefs to participate in same-sex ceremonies, as happens too often today.”

When the argument is framed as Pilon did, there’s no room to ensure that LGBTQ people will not be discriminated against. And I’m not certain this government has our back.

I’ve worried about the erosion of LGBTQ civil rights since President Donald Trump took office. In February his administration revoked federal guidelines permitting transgender students from using facilities that aligned with their gender identity. In June, Trump paid tribute to victims of last year’s Pulse Nightclub massacre but didn’t identify the 49 people as LGBTQ, and he failed to issue a proclamation for Pride Month.

As a married lesbian, I am immensely thankful to live in Massachusetts, especially if Trump tries to overturn Obergefell v. Hodges, the historic Supreme Court ruling that legalized same-sex marriage in all 50 states. With Trump having potentially two more Supreme Court seats to fill with Antonin Scalia-like justices (there are rumors of Justice Anthony Kennedy retiring; Justice Ruth Bader Ginsburg failed to retire during the Barack Obama administration), the ideological balance of the Court is at stake – yet I can exhale knowing that the Massachusetts Supreme Judicial Court legalized same-sex marriage in 2004’s landmark Goodridge v. Dept. of Public Health case, and it’s sticking.

That may not be the case for many LGBTQ married couples outside Massachusetts, though. There is talk among Christian evangelicals of a Trumped-up Supreme Court walking Obergefell back “without disrupting other precedent on marriage,” Rebecca Buckwalter-Poza wrote in the June issue of Pacific Standard magazine:

“The Supreme Court can significantly undermine LGBT rights even without reversing a single case. Right now, the federal prohibition against sex discrimination doesn’t bar discrimination on the basis of sexual orientation or gender identity; the Equal Protection Clause affords no specific protections for LGBT people, as it does for members of groups defined by race or nationality. The court can strip the rights to intimacy and marriage of their meaning, carving away gradually and masking the magnitude of changes by phrasing them in arcane legal terms.”

A movement has been afoot for some time now in state legislatures across the country to disenfranchise LGBTQ Americans. These bills, called “Religious Freedom Restoration Acts,” are a backlash to the growing acceptance of same-sex marriage and fears the Supreme Court will legalize it nationwide. Lawmakers used them to codify LGBTQ discrimination and justify denying us services.

For example, in 2013 a family-owned bakery in Gresham, Ore., called Sweet Cakes by Melissa wanted to “practice their Constitutional right to religious freedom,” as supporters might put it. Instead of serving an LGBTQ clientele, Sweet Cakes’ owners closed the shop and moved the business to their home.

Colorado state law prohibits public accommodations such as Masterpiece Cakeshop from refusing service based on race, gender, marital status, sexual orientation or gender identity.

“No one should ever have to walk into a store and wonder if they will be turned away just because of who they are,” Mullins told the ACLU of Colorado.

Let’s hope in the fall the Supreme Court does the right thing and does not codify LGBTQ discrimination. Democracy can begin only when those at the margin can experience what others take for granted.

The Rev. Irene Monroe is a speaker, theologian and syndicated columnist. She does a segment called “All Revved Up!” on WGBH (89.7 FM) on Boston Public Radio and a segment called “What’s Up?” Fridays on New England Channel News.

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