December 6, 2017
For more than 50 years, federal and state public accommodation laws have outlawed discrimination in public spaces, such as restaurants, hotels, and hospitals. And at no point has the U.S. Supreme Court approved of a constitutional right to discriminate in these public spaces. That may change depending on how the Court rules in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case argued yesterday involving a Denver baker who, due to religious objections, refused to sell a cake to a same-sex couple, David and Charlie, to celebrate their marriage.
As many have noted, this case is not about cake, or even about religious liberty. It is about discrimination, by “constitutionally relegat[ing] gay and lesbian people to second class status,” as David and Charlie’s attorney argued yesterday,
But it is also not just about discrimination. At stake is no less than the health and future of our pluralistic democracy.
The public square, which includes Main Street and the mall, has been central to the evolution of our American democracy. Public accommodations must be open to all in order for our democratic society to function optimally. And that must include being open to LGBTQ people, who historically have been shunned from public life.
This principle is under systemic attack by anti-LGBTQ forces, from concerted efforts like Masterpiece Cakeshop to use religion to gut public accommodation protections, to the ongoing effort to repeal public accommodation protections for transgender people in Massachusetts, at the ballot box in 2018. Opponents of LGBTQ equality would rather further fray the connective tissues that bind our pluralistic society together, than serve a slice of cake to the gay couple down the street.
LGBTQ people are born into and live in every state, county, and town in the United States. It is critical that we protect our ability to be out and open in communities across the nation.
The public square is at the heart of a vital democratic society, first and foremost, because inclusion in public spaces affirms equal citizenry, while exclusion from public spaces prevents full participation in civic life. Our nondiscrimination laws have been an integral part of the struggle to ensure equal citizenship for all Americans.
As described in an amicus brief in Masterpiece Cakeshop by public accommodation law scholars, state public accommodation statutes have deep roots in the common law, which prior to the Civil War recognized a business’s duty to serve, though that duty extended to white patrons only. Reconstruction offered hope that these protections would extend to African-Americans, but the enactment of Jim Crow laws instead required discrimination in every former state of the Confederacy. This de jure segregation received a stamp of approval from the U.S. Supreme Court in Plessy v. Ferguson. It was only through the struggles of the Civil Rights Movement of the 50s and 60s, the Brown v. Board of Education decision and others like it, and the enactment of Title II of the Civil Rights Act of 1964, that our nation truly affirmed our commitment to equal access to public spaces, and to the recognition of full and equal citizenship of African-Americans (however unfinished that work remains).
For the LGBTQ community, public accommodation laws are “protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civil life in a free society.” Those are the words of Justice Kennedy in Romer v. Evans, the 1996 U.S. Supreme Court decision that paved the way for passage of Colorado’s public accommodation law, under which Masterpiece Cakeshop is being sued. And Justice Kennedy likely holds the deciding vote in Masterpiece as well.
However, it is not just communities that have been historically excluded from public life, which stand to benefit from robust public accommodation nondiscrimination laws. Inclusive public spaces are necessary to form a common, civic society – the foundation of a healthy democracy. We live in a world where we increasingly live amongst people who look like us, and interact with people who think like us (whether through social media or specialized news outlets). At a time when our society is being pulled apart along fault lines of race, nationality, religion, and LGBTQ status, it is more important than ever that we preserve the few places where life dictates that we interact with those who are different – the public square.
And by doing so, we not only help preserve civic society, but we advance LGBTQ acceptance.
The public square is at the heart of a vital democratic society, first and foremost, because inclusion in public spaces affirms equal citizenry, while exclusion from public spaces prevents full participation in civic life.
Today, eighteen states explicitly forbid discrimination based on gender identity, and twenty-one ban sexual orientation discrimination. These protections have been critical to the LGBTQ community, which has spent generations living in the closet and in the shadows. These laws have made it possible for LGBTQ people to come out publicly in their communities, which in turn has increased society’s understanding and acceptance of LGBTQ people.
That’s because inclusive public spaces have the added benefit of creating a more tolerant society – another pillar of democracy. People of different backgrounds are more likely to see each other as part of their community, when they come in contact with each other. This idea, called the Intergroup Contact Theory, was developed in the 1950s by the social psychologist Gordon Allport, and was used then to advocate for the end of racial segregation. Central to this theory was the idea that being in contact with people who are different can help reduce prejudice, a significant obstacle to the proper functioning of a democratic system.
LGBTQ people are born into and live in every state, county, and town in the United States. It is critical that we protect our ability to be out and open in communities across the nation. That is why it is imperative that we protect the bonds that hold us together, by preserving the public square through robust nondiscrimination laws. Only if the public square remains open to all, can we have a democratic government that is truly for all of us.
Businesses open to the public should be #OpenToAll. Learn more about this campaign.