The United States of America prides itself on many things. But if one was to ask an American what makes the US so great, a lot of them would cite the US Constitution and the First Amendment as the cornerstone of American values, and the ability for any individual to practice and preach whatever religion, ideology or way of life they wished to do so, so long as it didn’t hurt anyone else or permit others from doing the same thing. From the get-go, from when Europe was still ran by tyrants and kings. The United States established itself as a beacon of freedom for all who wanted it.
But between the adoption of the First Amendment of the 15th December 1791, and today. A lot has changed. The world has made great strides in the name of equality for all, slavery was abolished, women got the vote, and it was made illegal to discriminate against people on the grounds of their race, religion or creed. Such progressions were controversial at the time, but today, most Americans look back on these decisions not with regret, but with pride. Pride that no matter who you are, what you believe or who you love, as an American, if you put in work, you can make it.
However, what happened on one normal day in Lakewood, Colorado in 2012 was going to be what put American values under a microscope, and potentially change the meaning of the 1st Amendment.
Charlie Craig and David Mullins were a gay couple planning for their wedding. One of the centrepieces of any wedding is of course, the cake. So as any couple would do for their special day, they sought out the best baker they knew to commission the cake. The bakers shop in question was Masterpiece Cakeshop, owned by Jack Phillips, a Christian man who believes that his work is a form of art, inspired by God. In the consultation between Phillips and the couple, upon learning that the two men were commissioning a cake for their same-sex wedding, Phillips politely declined their request to make a cake as he was a Christian, and did not believe in the sanctity of same-sex marriage. The couple were taken aback by this and left the shop, without discussing any details. Feeling that they were the victim of discrimination, Craig and Mullins complained and resulted in the case Craig vs Masterpiece Cakeshop which ruled in favour of the couple under the Colorado Anti-Discrimination act. Phillips was ordered not only to extend the services to same-sex couples, but to also provide adequate training for staff employees, and to submit quarterly reports to the Coloardo Civil Rights Commission.
Phillips, decided to disobey the orders and instead, took his business out of the wedding cake-making business. That, on top of reduction in business due to the negative publicity from the case, his business suffered and he was forced to lay off staff in order to keep his business afloat. Phillips claimed that the decision reduced the gross income by 40%. Phillips also saw this ruling as a violation of his 1st Amendment rights. Phillips was a Christian, and he wanted to operate his business in accordance of his religious beliefs. And he felt that, seeing the cakes as a form of artistic expression, that the ruling infringed his right to freedom of expression. In July 2016, with the help of ‘Alliance Defending Freedom’ or the ADF, a Christian legal group and charity, Phillips brought the ruling to the Supreme Court of the United States (SCOTUS) on the basis of the state ruling being unconstitutional.
Which leads us to where we are today. ‘Masterpiece Cakeshop v. Colorado Civil Rights Commission.’Despite pressure from LGBT rights groups and various politicians, the Supreme Court agreed to hear the case and it is currently awaiting hearing. How will SCOTUS rule? We don’t know. But we can at least make our own analysis and conclusion from the main talking points presented by both sides of the argument.
This argument commonly brought forward by those on the side of the couple is that Title VII of the Civil Rights Act of 1964 covers discrimination based on sexual orientation. However, this isn’t quite true, as the US appeals courts have failed to reach a consensus of whether it actually does. The Equality Act, a bill currently in congress aims to amend the Civil Rights Act to include discrimination by sexual orientation. But as of today, there is no federal legislation protecting people from discrimination based on their sexual identity. There is, however, various state legislation across 21 different US states protecting people from discrimination based on their sexual identity. Colorado being one of them with the Colorado Anti-Discrimination Act.
However, despite the allegations and ruling by the Colorado, Phillips claims that he did not in fact discriminate on them based off of their sexual orientation. He said he refused to bake the cake on the grounds that same-sex marriage goes against his religion, NOT on the grounds that they were just a gay couple. Phillips has stated that if the couple came in just wanting a regular cake, then he would have no problem serving the two gentlemen. However, he does not wish to have his art used in an event at which is at odds with his religion.
This point here is the crux of the entire discussion, was it really discrimination? If he was discriminating against them due to their sexuality, then he would not serve them any cake regardless. And if it was a straight person, asking on behalf of a same-sex couple, to provide a cake for a same-sex marriage, he likely still wouldn’t serve them on the basis it was for a same-sex marriage. This brings into question the very meaning of discrimination. Because one could say he was discriminating against them to refuse to provide a service on the basis of his prejudice views. People shall often say “Oh well he’s obviously homophobic, if he wasn’t, why wouldn’t he fulfil their wishes?” Which brings us down the hostile debate of ‘Is it homophobic to be against same-sex marriage on religious grounds’? If your religion mandates that marriage is between a man and a woman, then is opposing same-sex marriage being homophobic? Or is it merely standing up to the tenets of your faith? In essence, saying that you refuse to serve a same-sex wedding because you don’t like gay people is a lot different to saying you refuse to serve a same-sex wedding because your religion doesn’t recognise the sanctity of said weddings. Now one could obviously argue the ethics behind such tenets, however, same-sex marriage is now legal in the United States. Is it therefore a fair compromise between same-sex couples and the religious to allow same-sex marriages to be legal whilst still allowing religious people in the wedding industry to refuse to do business for same-sex couples? Some would scoff at the thought, saying “We should never compromise on prejudice!” But isn’t it equally as prejudice to violate someone’s 1st Amendment rights to practice their religion freely? This is where the interpretation of the 1st Amendment gets very subjective. And how the amendment to the Civil Rights act, the Equality Act, may have trouble passing through congress.
Another argument commonly brought forward is that because the US is a secular country, religion is not a valid reason for refusing to provide for a same-sex wedding. But this is a slight misinterpretation of the mearing of ‘secular’ in that secularism doesn’t equate to atheism. Everyone knows that the US is not a Christian country, the founding fathers hard-wired secularism into the constitution. But this only referred to the state, not the people. To quote the relevant part of the 1st Amendment directly: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The latter part of that sentence is key. It is the responsibility of congress not to favour religion, and equally, not to discriminate against a religion. It is a reasonable argument to suggest that forcing those in the wedding industry to provide for an event they disagree with on the grounds of religion is in violation of the 1st Amendment. Because as stated earlier: refusing to serve someone’s wedding on the grounds that one doesn’t like gay people is different to refusing to serve someone’s wedding on the grounds that they disagree with the sanctity of same-sex marriage.
These points, and more, are what SCOTUS will have to consider upon the hearing of the case (the date of the verdict at the time of writing this article is yet to be decided). There is uncertainty to tell how they will decide at this point. People are predicting that given the current Justices on the supreme court, and the circumstance of the case, the opinions will definitely be divided. Donald Trump’s newest appointment, Neil Gorsuch, who was appointed after the passing of Justice Scalia, is expected to vote in favour of Masterpiece Cakeshop. In total, there are 5 historically Republican Justices and 4 historically Democrat Justices. Despite the role of SCOTUS to be above party politics, this hot-button issue falls almost directly on one of the fieriest debates between Democrats and Republicans. In one corner, you have the pro-business and anti-same-sex marriage Republicans and in the other corner, the pro-same-sex marriage and anti-discrimination Democrats, almost polar opposite views in the case. Given the ratio of 5 to 4 in favour of the Republicans, one would assume that the Justices will vote 5 to 4 in favour of Masterpiece Cakeshop. However, Justice Anthony Kennedy, who was appointed by President Ronald Reagan in 1988, has voted many times in favour of same-sex rights over his tenure despite being a Republican. It is therefore his verdict that will likely be the tie breaker in the final verdict, and nobody knows for certain which way he will swing.
The ruling by SCOTUS will be monumental, further adding a hugely significant clause to the already complicated case of 1st Amendment rights. Congress knows, the Justices know and the President knows that the ruling of Masterpiece Cakeshop v Colorado Civil Rights Commission will be a deciding factor in many, many more cases to come. And will set a precedence in the heated political theatre that is religion in the US and LGBT rights.