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THE U.S. SUPREME COURT AVOIDS DROWNING THE LGBTQ COMMUNITY IN A FLOOD OF DISCRIMINATORY BEHAVIOR

The LGBTQ community’s long battle to legalize same-sex marriages finally ended on June 26, 2015 when the Supreme Court of the United States (SCOTUS) delivered its opinion in Obergefell v. Hodges, 576 U.S. 135 (2015). This seminal decision resulted in same-sex couples planning wedding ceremonies and receptions. In turn, Obergefell raised the issue of whether a cake baker could refuse to create a cake for a same-sex wedding based on the baker’s religious beliefs. Although this issue was recently addressed by SCOTUS in Masterpiece Cake Shop, LTD. v. Colorado Civil Rights Comm’n, 2018 U.S. LEXIS 3386 (2018) (Masterpiece), it was left largely unsettled.

In Masterpiece, SCOTUS ruled in favor of Jack Phillips (Phillips), a Christian cake shop owner in Colorado who refused to create a wedding cake for a same-sex couple in 2012 because he claimed to do so violated his religious beliefs. This case presented two significant constitutional concerns to the Court, specifically, whether Phillips constitutional rights to freedom of speech and free exercise of religions would be infringed if forced to contract with and create wedding cakes for same-sex couples. While the Court did give passing consideration to these issues, it focused its analytical attentions to its view that the Colorado Civil Rights Commission’s (the “Commission”) handling of the Phillips’ case was biased because of the Commission’s belief that religion had historically played a role in fostering discriminatory behavior referencing religion’s role in slavery and the Holocaust. In doing so, SCOTUS reversed the Colorado Court of Appeals’ affirmation of the Commission’s decision in favor of the same-sex couple who wanted Philips to bake a wedding cake for them.

In rendering its decision in favor of baker Phillips SCOTUS found significant: a) Phillips’ refusal to bake the couple their cake occurred in 2012, before Obergefell was decided, and before the state of Colorado recognized same-sex marriage; b) the Commission in 2012 had a practice of finding no violations of the Colorado Anti-Discrimination Act in cases where the bakers had refused to create cakes with derogatory messages that demeaned same-sex couples; and c) Commissioners presiding over the case below called Phillips’ religious justification for discrimination a despicable piece of rhetoric and compared his argument to those that Nazis made to justify the Holocaust. This showed the Court that the Colorado Civil Rights Commission violated the free exercise clause of the first amendment which required the Commission to approach Phillips’ beliefs with neutrality and tolerance.

The majority opinion by SCOTUS was delivered by Justice Kennedy, the same jurist who wrote the decision legalizing same-sex marriage. The tightrope Justice Kennedy and the majority walked in deciding this case on the basis Phillips’ free exercise of religion or freedom of speech rights had been violated, without providing license to discriminate against members of the LGBTQ community, is demonstrated by the following oft quoted statement in the Opinion:

“Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and Constitution can, and in some instances must, protect gay person and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and, in some instances, protected forms of expression.”

Because Masterpiece was decided largely on its own unique set of facts, its impact on the LGBTQ community’s rights and protections will likely have little impact.

Thankfully, here in New Jersey, our New Jersey Law Against Discrimination prevents employers and businesses like Masterpiece Cake Shop LTD. from discriminating against individuals based on numerous immutable characteristics, including gender and sexual orientation. N.J.S.A. 10:5-1-49. Given Newsweek reports that 30 states still do not protect LGBT from discrimination in the workplace or housing, we all should take pride that we live in a state that does.

If you believe you are or have been a victim of unlawful discrimination in the workplace, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, located in Morganville, New Jersey, we are dedicated to protecting the rights of employees.