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Let Them Eat Wedding Cake

A Colorado baker's bid to discriminate against gay couples sets a precedent that would harm both small businesses and civil rights. Independent business advocates arguing for enforcement of public accommodation laws make their case in a dispute that will be argued before the Supreme Court today.

Jeff Milchen

A young couple on a long winter drive across the Northern Rockies decides to rest for the night and finish their journey in daylight. There’s no reason to search hotel deals or review ratings; they approach the town’s  lone motel and are relieved to see the neon vacancy sign. On arrival, the manager looks at them and mutters, “are you a couple?”

After affirming, the manager refuses to accommodate them, saying his faith disapproves of interracial marriage. While the story sounds like a relic of the pre-Civil Rights Act era, a case argued in the U.S. Supreme Court this week could turn back the clock and enable bigoted business owners to selectively deny service.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, concerns cakeshop owner Jack Phillips’ refusal to create a cake for a male couple planning a post-marriage party, explicitly citing their being homosexual as the reason. Charlie Craig and David Mullins  made no mention of any messaging for their  cake -- Phillips just said his services would not be available to them.

The men successfully sued Phillips under Colorado’s Anti-Discrimination Act, which prohibits businesses open to the public from denying service on the basis of race, religion, gender, or sexual orientation. Phillips then challenged the law on free speech and religious freedom grounds, arguing that being required to create a cake for the couple amounts to forcing him to endorse a practice he considers immoral. His claim that the law violates his religious freedom and First Amendment rights was rejected by lower courts.

The American Independent Business Alliance (AMIBA) supports public accommodation laws and rejects Phillips’ claim. Phillips was not asked to participate in their wedding or suggest support in any way. To accept his argument would render the law vulnerable to  challenges almost at will. As another amicus brief notes, no one presumes a print shop is endorsing  an event simply because the print material promoting it --surely an activity closer to free speech activities than cake.

AMIBA  joined with the Main Street Alliance and the Chambers of Seattle and San Francisco in a Supreme Court brief arguing in support of equal treatment for all customers. In addition to our belief that public accommodation laws are necessary to safeguard civil rights, we engaged because bigotry by any community-serving business harms other entrepreneurs.

Many potential customers simply will avoid shopping, dining and doing other business in towns where discrimination is known. “When consumers have reason to worry that some businesses lining Main Street may refuse to serve them, the entire business community suffers,” the brief notes.

This has proven true not only in communities, but entire states. In 2016, North Carolina’s legislature passed a law that both voided Charlotte’s LBGT non-discrimination ordinance and required people to use public bathrooms corresponding to the sex on their birth certificate. Many individuals, performers, businesses and event planners boycotted the state in protest. Though few small businesses supported the law, many suffered as the state lost more than $3 billion in business before the bill was partially repealed.

While the Colorado couple enjoyed the option of choosing another baker at their leisure, many people in rural areas must rely on a single provider for many essential goods and services. Allowing businesses to discriminate against customers invites real harm. In a 2015 case, a Michigan pediatrician refused to treat an infant solely because her parents were lesbians. A gay or interracial couple denied lodging could be forced to travel in dangerous conditions or in a tired state that endangers them and others.

While our federal Civil Rights Act explicitly prohibits racial discrimination in public accommodations, sexual preference is not mentioned. Colorado is among 21 states with laws explicitly closing that loophole.

Opening the door to religious claims as basis for discrimination could endanger the rights of millions. This threat provoked leading disability rights groups to file a separate brief warning, “Many faiths have at least some citable, scriptural basis for shunning people with disabilities.” If public accommodation laws are undermined, atheists and other religious minorities also will be subject to abuse.

Independent business owners overwhelmingly recognize their moral responsibility to serve and treat all people equally. And many are going further, stepping up in their communities to advance diversity proactively and help create a safe environment for all.  *AMIBA offers free anti-bigotry window decals for schools, houses of worship, workplaces and more. While bigots exist in every profession, AMIBA and our cohorts on the Supreme Court brief hope to make clear they are outliers among small business owners.

The intolerant baker and those who back him are fighting a battle many Americans assume already had been decided in favor of protecting vulnerable groups. But with racists and bigots newly emboldened (the Trump administration has employed U.S. attorneys against Colorado’s law), we must not be complacent. While Americans now must trust the Justices to uphold Colorado’s public accommodations law, we also must realize no civil rights can be taken for granted today.

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

Jeff Milchen

Jeff Milchen is the Justice Communications Associate for the Unitarian Universalist Association and writes weekly for UU World.

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