In 2012, Lakewood based Masterpiece Cakeshop refused to make a wedding cake for gay couple, Dave Mullins and Charlie Craig. A legal case between bakery owner Jack Phillips and the newlyweds had been pending until the United States Supreme Court ruled in favor of the baker on June 4th. The decision was 7-2 with judges Ruth Bader Ginsburg and Sonia Sotomayor dissenting.
In the majority opinion, Justice Anthony Kennedy focused on his perspective that the Colorado Civil Rights Commission did not fairly judge the baker and acted “… without undue disrespect to sincere religious beliefs…” In her dissent, Ginsburg wrote, “What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”
The Supreme Court decision put Colorado in the national media spotlight and around the state, the reaction was mixed. Supporters of Phillips called and visited with congratulations. Some took to digital media to congratulate and promote a religious rights or anti-gay agenda.
The ruling was met with immediate backlash from gay rights activists and elected officials. LGBTQ non-profit advocacy organization, One Colorado organized a rally in response to the court ruling which brought about one hundred people to the steps of the State Capitol. Governor John Hickenlooper called the ruling “disheartening” and Congresswoman Dianna DeGette said it was a “wake up call.”
Openly gay senator, Dominick Moreno closed the rally by reminding protestors that Supreme Court judges “didn’t get there on their own.” He noted that elected officials nominated and confirmed the justices and encouraged participation to elect a “pro-equality majority” of Colorado representatives who would influence the judiciary.
Democratic consultant Laura Chapin from Denver lashed out at the decision and most recent US Supreme Court Justice from Colorado, Neil Gorsuch, who sided with the majority. In a Facebook post dripping with sarcasm, she wrote, “Supreme Court has just rule[d] against the gay couple in the Masterpiece cake shop case and that religion can be used [as] an excuse for discrimination. Happy Pride everyone! And congrats to all the Colorado Gorsuch supporters!”
Legal experts and politicians were careful to explain that while the Supreme Court did rule in favor of the baker, the victory was very narrowly tailored. As attorney and ACLU Public Policy Director Denise Maes interprets, “The court ruled in favor of this particular baker at this particular time with these particular facts. That is very different than SCOTUS saying you have a first amendment right to discriminate. You don’t.”
The ACLU who represented Mullins and Craig in their legal battle issued an official statement titled: “Supreme Court Upholds Basic Principles of Nondiscrimination, Reverses Colorado Civil Rights Commission Decision.” In that media release, they write, “The court did not accept arguments that would have turned back the clock on equality by making our basic civil rights protections unenforceable, but reversed this case based on concerns specific to the facts here.”
Louise Melling, ACLU Deputy Legal Director expounded to say the SCOTUS, “…reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people.”
Craig Konnoth was one of two CU professors who wrote amicus briefs in support of the Colorado couple. He is the former California Deputy Solicitor General and has been a Colorado gay rights activist since he moved here over a year ago. He interprets the SCOTUS ruling as not changing much, “Employers still cannot discriminate on sexual orientation.” However, he is also concerned about future cases that the Supreme Court will hear, “The concern is that the next case is a more difficult case, and this opinion could incite people to discriminate and push the envelope.” He also fears that a moderate Justice Kennedy could retire with a replacement appointed by Trump who would certainly usher in a conservative justice. Konnoth is pleased that the court reaffirmed anti-discrimination laws and that the LGBTQ community can “Live to fight another day.”
Chapin believes the political ramifications are challenging for a progressive agenda, “… what the case means legally and what it means politically are two different things. Legally it may be nuance. Politically the pro-bigotry side sees it as a win.” She continues, “Politically, it doesn’t matter if the Masterpiece Cake shop case was narrowly tailored. The pro-bigotry groups won’t read it or approach that way. There will be an avalanche of state and federal laws proposed that allow discrimination under the guise of religion. And Republican state legislatures will pass them. This will not only not allow bakers to refuse cakes, it will allow hospitals and medical providers - including pharmacists - to deny women contraception and abortion care.”
Maes concurs that the legal victory will embolden some to try to weaken civil rights legislation. “Politically, sure there will be fallout, probably from Republicans trying to change anti-discrimination laws. We will see political maneuvering.” She is optimistic that the court ruling could energize the LGBTQ community, pointing out that Dave Mullins and Charlie Craig will marshall this month’s PrideFest Parade and that this year’s parade could be the biggest ever.
In a Facebook post she writes, “I don’t kid myself and although we can breathe a sigh of relief today, we cannot rest at ease. This case was not about the cake. It was about who should have access to good and services in the public sphere. People should not have to endure the shame and humiliation Charlie and Dave endured that day in 2012. I am well aware that the anti-LGBT movement will continue its attacks and efforts to undermine the civil rights of the LGBT community. The ACLU and other LGBT rights activists and allies will counter these efforts at every turn. We will resist, stay forever vigilant and woke. They will not find us sleeping.” Maes sums up by saying, “They won this battle, they didn’t win the war. They asked for a license to discriminate and they didn’t get that.”