Discrimination vs. Free Speech: Who Wins?

Next month, the Supreme Court will hear oral arguments in a hotly contested case pitting the rights of a religious business owner, Jack Philips, who owns Masterpiece Cakeshop in Colorado against a gay couple who claim they were discriminated against when Philips refused to make them a cake for their wedding.  The Colorado Supreme Court found Philips violated their anti-discrimination laws earlier.

Philips is not the only business owner to refuse to serve gay couples.  In Oregon, “bakeshop owners Aaron and Melissa Klein were issued a $135,000 state penalty for refusing to make a cake for a same-sex wedding.”  Such a ruling has threatened to put them out of business and the case is pending before the Oregon Court of Appeals.

At the core of Philips case is the line between what some would call discrimination and what others would call free speech.  Gay rights and LBGT advocates argue that a Supreme Court ruling in favor of Philips would open up the floodgates of discrimination while those favoring Philips argue a ruling against him would force thousands, if not more, business owners to choose between their beliefs and livelihoods.

It is not a stretch to say that many evangelicals and blue-collar voters supported Donald Trump because of the government mandating they behave a certain way.  Unsurprisingly then, the Trump administration filed a 41 page brief in favor of Philips arguing the business owner would be violating his beliefs if he baked a cake for the gay couple.

Where the Supreme Court leans with this case is uncertain.  It’s guaranteed the case will be decided on a 5-4 majority with Justice Kennedy being the swing vote.  Kennedy was the Justice in Obgerfell vs. Hodges who found gay marriage needed to be legalized because of “feelings.”  But he also warned that issues like this would begin cropping up across the country.

Religious advocates worry about a slippery slope.  If businesses are forced to comply, from providing flowers to baking cakes to yes, actually being forced to go LBGT weddings and take photos, then how long will it be before churches are forced to marry LBGT couples?  How long will it be before the basic message for a religious couple wanting to open up a business will be, “leave your religious beliefs at the door?”

Future issues aside, the case presents numerous issues.  The first is at what point does a business’s refusal of service constitute discrimination.  For example, business’s can refuse service for almost any reason (no shoes, no shirt, no service) but few would call that discrimination.

Secondly, does a business’s refusal of service actually harm the individual/couple involved?  By this I mean does the LBGT couple not have access to other bakery shops willing to bake them a cake?  Philips has certainly suffered harm in the form of being fined by the State of Colorado for many thousands of dollars.  A flower shop owner in WA State, the Kleins in OR and a photographer in NM certainly have, but there seems to have to be actual harm to the LBGT couple other than “I don’t like they don’t like me” to harm a business owner.

That is the danger of making case law based on feelings.  Feelings are subjective.  Financial damages are not.  Indeed, the LBGT couple in question that were denied service by Philips easily found another bakery that would make them a cake.  So were there any actual damages to the couple?

Thirdly, and perhaps most importantly, what are the legal rights of religious business owners?  Discrimination occurs on a daily basis simply because we are human beings.  For all any of us knows somebody might be denied a job because the interviewer is having a bad day or does not like your outfit.  You’ll never know and it is impossible to prove.  But something more obvious as a religious business owner refusing to serve a LBGT couple because of their religious beliefs is crossing the line?

Many states in the country draw exceptions for the violations of personal beliefs.  For example, Michigan does not force doctors who oppose abortions to, well, perform abortions.  In every state in the country, churches opposed to LBGT marriages can deny ceremonies to the couple.  So giving a few business owners the same rights is going to far?

Supporters of LBGT rights, namely the ACLU, argue a ruling in favor of Philips would unleash a “wave of discrimination across the country.”  Even most advocates of gay rights know this is hogwash.  The idea that businesses nationwide will suddenly want to discriminate, especially if their customer base opposes it, is absurd.  If that were the case, why did big business boycott Indiana in 2015 for its Religious Freedom Law or North Carolina due to its transgender bathroom rule?

Ironically, the case pits the rights of a minority group, religious business owners, against the will of the majority.  By majority I mean LBGT couples/individuals and the general public.  LBGT advocates would argue the situation is switched but in truth its not. There are not many businesses in the country that base their business decisions on their faith but some do.  Having such faiths violated is basically tantamount to the court telling these couples their faith is irrelevant if they open a business.

LGBT advocates would be fine with this.  To them, and many progressives more generally, using the state to enforce norms and values is fine as long as it complies with their beliefs.  God forbid if conservatives do it.  That’s why when the Court found in favor of Hobby Lobby and Little Sisters of the Poor, progressives went nuts.  Essentially, they argued the same thing.  Waves of discrimination would pop up across the country as nonprofits could deny coverage of abortion to women.  I haven’t noticed this occurring to date.  Have you?

Unlike lower courts and state governments, the Supreme Court, not as beholden to political pressure, has taken a much more expansive view of religious rights in this country.  That’s why from a purely judicial perspective this case is so interesting.  Justice Kennedy will be forced to take a stance between “feelings” which he confirmed were important in Hodges vs. religious rights which he has consistently backed for decades.  Which way he goes could determine the fate of religious business owners across this country and protect the rights of a minority, or allow them to be trampled underfoot in the name of a progressive vision of “progress” using the state to enforce new norms.  In effect, a backdoor way of implementing change across America.

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