Nel's New Day

December 5, 2017

Has the Supreme Court Ever ‘Given Protection to Food’?

Couples denied the benefits of legal marriage in the United States cheered when the Supreme Court invalidated discrimination against them in US v. Windsor (2013) and later Obergefell v. Hodges (2015). The current set of justices is now eliminating rights for married same-gender couples. Yesterday, the majority of justices refused to hear an appeal from the Texas Supreme Court that decided lesbian and gay spouses do not deserve government-subsidized workplace benefits in Houston. In Pidgeon v. Parker, the state’s high court concluded that Obergefell may have granted the right for same-sex marriage, but the federal decision “did not hold that states must provide the same publicly funded benefits to all married persons.” In Texas, marriage equality is legal, but married same-gender couples won’t get the same rights as married straight couples.

That Supreme Court non-decision was made the day before it heard arguments in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Division, a case in which a baker was sued because he refused to make a cake for a gay couple’s wedding reception after they legally married out of state. The lawsuit is based on Colorado law declaring that businesses cannot deny goods or services to someone due to their disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. Colorado agreed with the gay couple that the baker was discriminating against them with his refusal to make them a cake because they are gay.

In another Colorado case, a baker refused to create a cake with homophobic bible messages but offered to sell him a Bible-shaped cake and an icing bag so that he could decorate it himself. The commission disagreed with the complaint against her because the refusal was based on the message and not the religion. The Masterpiece baker refused to the sale because of the users; he didn’t even ask if the cake would have any written “speech.”

Although “religious belief” seems to be an integral part of the case, the baker is not using the First Amendment’s recognition of freedom of religion. Instead the case is based on “free speech,” in this situation the claim that decorating a cake is an art and therefore represents free speech.

As in earlier cases about LGBTQ rights, the questions—and sometimes answers—would have been humorous if they didn’t pertain to the serious issue of government-sanction discrimination. Elena Kagan asked the baker’s lawyer if religious beliefs are a reason for hairstylists or make-up artists to refuse services for a same-gender wedding. The lawyer said no because these activities are not about “speech.” Kagan retorted that “some people might say that about cakes.” The justice was even more incredulous about the lawyer’s statement that “the tailor is not engaged in speech, nor is the chef.” Kagan asked, “Woah, the baker is engaged in speech, but the chef is not engaged in speech?”

Sonia Sotomayor asked the baker’s lawyer if the high court had ever “given protection to a food” and noted that “the primary purpose of a food of any kind is to be eaten.” She continued, “There are sandwich artists now. There are people who create beauty in what they make, but we still don’t call it expressive and entitled to First Amendment protection.” Sotomayor suggested a functional test to determine where objects to be used or consumed wouldn’t be considered expressive enough to warrant First Amendment protection.

Samuel Alito dug the hole deeper in an innocent question about the protection of architectural designs based on speech. The lawyer again said it would not be, and Stephen Breyer indicated surprise at her answer:

“So in other words, Mies [Ludwig Mies van der Rohe, a German-American architect] or Michelangelo is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that really does baffle me, I have to say.”

As in most Supreme Court cases, three conservative justices—Chief Justice John Roberts, Alito, and Neil Gorsuch—oppose civil rights with Clarence Thomas a complicit silent fourth.  Anthony Kennedy is firmly in the middle, and questions from the remaining four indicate an understanding of the issue.

People who suffer from privilege continue to demonstrate their lack of understanding regarding the humiliation of discrimination. In his column, conservative George Will almost seemed to be sensitive to the issue when he wrote about the limits of free speech and cited the black protests of “sit-ins” leading up to the 1964 Civil Rights Act. Yet he finished by lambasting the gay couple for not just going to another baker who would prepare the cake. Yet Will said nothing about the blacks just going to another place where they could get served.

From his pedestal, white straight conservative male David Brooks wrote, “It’s just a cake. It’s not like they were being denied a home or a job, or a wedding. A cake looks good in magazines, but it’s not an important thing in a marriage.”

Kennedy told Solicitor General Noel Francisco, the representative from the homophobic DOJ supporting the baker, that the baker, if he won, could just put up a sign stating that he would not back wedding cakes for same-gender couples. That would be “an affront to the gay community,” Kennedy explained to Francisco. Visual signs   Kennedy also rejected the argument that the baker’s denial was based on the couple’s identity and not objections to marriage equality. He also accused the Colorado Civil Rights Commission of being “neither tolerant, nor respectful of Phillips’ religious beliefs.”

A group of faith leaders has written:

“Our objective is to spread hope and love to all people, including gay and transgender people, which is why we are deeply troubled by those who continually use religion as an excuse for discrimination against LGBTQ people—or any group of people…. We want to state loud and clear that religion should never be used to harm, hurt or deny service to anyone in the public square.”

By accepting the baker’s arguments, the Supreme Court can create a giant sinkhole for civil rights laws for all other categories including sex, race, and religion. Even with five votes in favor of the baker produces the dilemma of drawing a line respecting religious beliefs without, as Breyer said, “creating chaos.” If the baker wins a free speech argument in the highest court for his “art,” anyone can refuse service to any minority group by claiming free speech rights. The basis of the baker’s argument is that laws protecting the civil rights of marginalized groups can violate free-speech rights of those who refuse to serve them. A court ruling against LGBTQ people only would single out that group for legal discrimination while protecting other classes of people. There would not be a legislative fix for such a constitutional right to discriminate.

The baker’s attorneys acknowledge that their win could allow a baker to refuse service to an interracial couple, an argument supposedly settled almost 50 years in another Supreme Court case, Newman v. Piggie Park. The owner of a South Carolina barbecue chain claimed that the Civil Rights Act “contravene[d] the will of God” and infringed on his right to the free exercise of religion, because his beliefs “compel him to oppose any integration of the races.” In a brief 1968 ruling, the Supreme Court called his claims “patently frivolous.”

Justices could also send the case back to the Colorado Civil Rights Commission requiring it to be more tolerant to the baker’s religious beliefs or write the decision to apply only to Colorado law.

A ruling in favor of the gay couple would merely preserve current nondiscrimination laws, unavailable in most states.

However the court decides, the decision will probably not be announced until next June, the month of wedding cakes. Reasonable people can hope that at least five justices will agree with Sotomayor’s conclusion:

“If you want to be a part of our community, of our civic community, there’s certain behavior, conduct you can’t engage in. And that includes not selling products that you sell to everyone else to people simply because of either their race, religion, national origin, gender, and in this case sexual orientation. So we can’t legislate civility and rudeness, but we can and have permitted it as a compelling state interest legislating behavior.”

1 Comment »

  1. Sotomayor got to the crux.

    Like

    Comment by Lee Lynch — December 6, 2017 @ 2:37 AM | Reply


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