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On December 5, the U.S. Supreme Court heard oral argument in the profoundly important case of Masterpiece Cakeshop v. Charlie Craig & David Mullins.

The outcome of this case will either preserve hard won protections in local, state and federal antidiscrimination laws, or allow them to be overridden by religious and moral objections.  The outcome will either preserve Obergefell v. Hodges, the 2015 win on marriage equality, or it will allow individuals and businesses to disfavor marriages of same-sex couples and treat them as second class.  It’s that stark. This blog attempts to unwind the issues.

Facts of The Case

In 2012, Charlie Craig and David Mullins were heading to Massachusetts to marry, but also wanted to have a party back home in Colorado.  At the suggestion of their wedding planner, they visited Masterpiece Cakeshop outside of Denver to order a cake for the festivities.  As they sat together with Charlie’s mom at the Cakeshop and perused a book about the cakes, the bakery owner joined them.  When they explained the cake was for their wedding reception, he told them he would not sell baked goods to gay and lesbian couples for weddings.

The whole personal interaction took about 20 seconds.

They soon learned that the Cakeshop had refused cakes – even cupcakes – to other same-sex couples as “standard business practice.” Charlie’s mom also called the Cakeshop the next day and learned the refusal policy was based on the owner’s Christian religious beliefs.

Charlie and David challenged the refusal and, unsurprisingly, won their case at the Colorado Civil Rights Commission.  The bakery admitted it provided a commercial service to the public – selling wedding cakes – but extended that service only to different-sex couples and not same-sex couples.  This violated state law forbidding discrimination by businesses offering sales or services to the public, on the bases of sexual orientation, disability, race, creed (meaning religion), color, sex, marital status, national origin or ancestry.

The Bakeshop lost in court appeals, too.  Like other businesses before them that discriminated against people because of who they are, the Bakeshop invoked the constitution’s venerated free speech and free exercise of religion clauses as a shield against the state antidiscrimination law. Those arguments have held no sway in the public marketplace.

The Supreme Court Takes the Case

Yet, after more than a dozen conferences at the Supreme Court, and to the surprise of many, that Court accepted the Cakeshop’s petition for review of their case last June.

ACLU lawyers representing Craig and Mullins will face off against the Cakeshop’s lawyers, the “Alliance Defending Freedom” (ADF), which spends its $58 million budget on issues of “religious freedom, the sanctity of life, and marriage and family.”  LGBT people remain a principal target of their extensive litigation and public (mis)education efforts.

GLAD and NCLR, assisted by the law firm of Pierce Atwood, LLP, filed in October one of about forty friend-of-the-court briefs in support of Craig and Mullins, arguing that a constitutionally-compelled exception to antidiscrimination laws would impose serious harms on LGBT people, other historically marginalized groups, and our broader society.  Others submitting briefs in support of the couple range from Church-State scholars to members of Congress, the NAACP Legal Defense and Educational Fund (LDF) and other civil rights groups, public accommodations scholars and nationally known professional bakers and chefs.

Exceptions Swallow the Rule

Some people have asked, “why do we care about a cake? Who wants a cake from someone who doesn’t want to make it for you anyway?”

Some others hope a limited exception to antidiscrimination laws will calm the waters.

And, of course, many LGBTQ people and allies are also people of faith themselves who embrace religious pluralism as part of our Nation’s DNA.

But it is not about a cake, and is about a fundamental principle of our public citizenship. It is ultimately about whether every business open to the public can discriminate against anyone they please based on their personal, religious or moral views.

As much as we support free exercise of religion, and we do, we reject the Cakeshop’s efforts to use protections for religion and speech to allow a vendor’s views to dictate who has access to publicly available goods and services.

For one, the outcome ADF and the Cakeshop seek would undo a central precept of the four major LGBT cases at the Supreme Court in the last 20 years, namely that “moral” views about LGBT people do not justify discriminatory treatment.  Although barriers to full equality remain and are more intense in some places than others, the goal of being included as equal, respected and participating members of society is closer for many LGBT people than ever before in our Nation’s history.  This is particularly important for LGBT youth who long to grow up in a world free from violence and discrimination because of who they are.

Turning the marketplace into a gauntlet where vendor views of who you are can justify denials and disparagement would force many LGBT people back into hiding, disrupting our ability “to lead more open and public lives” – as the marriage case put it – that the Court decisions have fostered. Our lives will change, and for the worse, if our ability to buy food or clothing, or see a movie or concert, depends on how much prejudice there is against us, as Professor Joseph Singer put it. If expression and action on private moral views trump all other considerations, including harm to others, then our marriages will be degraded to second class, and our parental rights, employment benefits, and much more can be limited as well.

Although LGBTQ people are the intended target of this breathtakingly broad exemption, they would not be the only casualty.

If the Constitution provides protection for discriminatory actions based on free speech or moral views as to LGBT people, then others who have also faced historical discrimination or are minority groups can expect to see the same arguments wielded against them.

Reasons for Optimism

On the law as it stands now, this case should be a slam dunk for Craig and Mullins.  The ACLU and many amici – including religion and speech experts and faith and civil rights groups – have shown the court why our side is right on the law.  That is what makes the Court’s decision to hear the case a surprise.

For decades, we’ve found free exercise and freedom of speech can coexist with enforcement of neutral, generally applicable non-discrimination laws regardless of the beliefs or motivations of the person discriminating. After 100 years of Jim Crow, and achievement of the 1964 Civil Rights Act with its public accommodations provision, the rule has been that personal beliefs cannot be justification for violating an antidiscrimination law. And each of the Supreme Court’s landmark LGBT decisions – Romer, Lawrence, Windsor and Obergefell – clarify that the Constitution does not permit anti-LGBT discrimination in the face of private beliefs and biases.  We don’t need a new and broad exemption where our society already legally protects the exercise of faith virtually everywhere but the public marketplace and also gives a right of action to those who believe their expression has been crimped.

Antidiscrimination laws are also understood to serve “compelling state interests of the highest order,” as one Supreme Court case put it.  These laws address the demeaning and deprivation of dignity from unequal treatment, along with material harms resulting from denied goods and services, and the burden and difficulty of finding other vendors for what you need, particularly in more rural areas.  Once excluded, a psychic harm arises caused by the uncertainty about whether you will be turned away again, and forced to go through the same process.

A public marketplace allows Americans to come together in shared civil spaces that are open to all on equal terms.  Excluding individuals from the marketplace on the basis of group membership or immutable characteristics reduces the opportunities for all Americans to interact and forge bonds we might not encounter outside the commercial sphere.    This “political and social integration,” as well as “economic opportunities,” – as the Supreme Court put it – are threatened by the Cakeshop’s proposed rule.

These interests apply as much now as they did fifty years ago when the Civil Rights Act was passed. And the state’s interest in combating these harms is just as compelling when LGBT people are involved, even as there are differences in the ways women and people of color and LGBT people have experienced discrimination.  GLAD’s lawyers were not the only ones to notice that in the 2015 Obergefell decision, the Supreme Court spoke of how sexual orientation shares the features the Court has held are an impermissible basis for discrimination in other cases.  This could be an issue the Court explores in its Masterpiece Cakeshop ruling.

At the end of the day, we hope the Supreme Court will continue allowing for free exercise of religion and for LGBT people and others to engage in the myriad ordinary transactions that many take for granted in their everyday lives.   This is a case to watch.

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Want to take action right now? Sign onto this letter to express solidarity with Charlie and Dave, and everyone seeking equal treatment under the law in America.