Supreme Court Weighs Whether Colorado Baker May Refuse to Serve Same-Sex Couples
Author: David B. Weisenfeld, XpertHR Legal Editor
December 5, 2017
A divided US Supreme Court heard arguments today in a closely watched case that asks whether the First Amendment can exempt a business owner from prohibitions against discriminating based on sexual orientation because of his religious beliefs. In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, a Colorado baker claimed that requiring him to bake a wedding cake for a same-sex couple would violate his free speech rights.
In a landmark 2015 ruling, the Supreme Court cleared the way for same-sex marriage nationwide in finding that the Constitution requires all states to license same-sex marriages and to recognize such marriages that were lawfully performed out of state. But the Court stopped short of extending protections to LGBT individuals in employment, and did not address public accommodations.
The current dispute involves the Colorado Anti-Discrimination Act, which prohibits businesses that sell goods to the public from discriminating based on sexual orientation, in addition to other protected characteristics. The Colorado Court of Appeals held that the Act requires businesses open to the public to treat all customers equally.
The baker is a Christian who closes his business every Sunday and refuses to bake cakes that violate his religious convictions. The Trump administration supported the baker's position at the Supreme Court, with Solicitor General Noel Francisco arguing that the baker had engaged in protected speech.
Francisco suggested that those who would apply the anti-discrimination law in this case were too easily dismissing the free speech concerns. "They would compel an African-American sculptor to sculpt a cross for a Klan service," he told the justices. But the state countered that LGBT individuals are entitled to the same protections used to fight discrimination against race, sex and national origin.
All eyes were on the Court's frequent swing voter, Justice Anthony Kennedy, as it appeared four justices were likely to side with the state and four others with the business owner, Jack Phillips.
Justice Kennedy provided the pivotal vote two years ago in support of same-sex marriage. But it was far from clear during the arguments whether he will vote to uphold the application of the Colorado anti-discrimination law. In one potentially telling exchange, he told a lawyer for the state, "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."
A decision is expected by the end of the Supreme Court's term in June 2018, and will provide insight as to where the Court stands on LGBT issues. It also remains possible the Court will soon decide to hear another sexual orientation discrimination case with more direct implications for employers.
The federal appellate courts have been split as to whether Title VII of the Civil Rights Act covers sexual orientation discrimination. The Chicago-based 7th Circuit Court of Appeals found that such discrimination is covered in Hively v. Ivy Tech Community College. But the Atlanta-based 11th Circuit reached a different result in Evans v. Georgia Regional Hospital, a case in which the plaintiff - a gay woman who presents herself in a masculine manner - is seeking Supreme Court review.