With The Sun busy covering hurricanes, earthquakes, the city’s many murders and the local vandals who wreak havoc on statues, it inadvertently let an important story fall through the cracks: the Trump administration’s filing of an amicus brief in support of a baker who violated Colorado’s public accommodations law when he openly discriminated against a same-sex couple by refusing to make a wedding cake for them.
Five years ago, Jack Phillips, who opposes same-sex marriage and is the owner of Masterpiece Cakeshop, a business open to the public, refused to serve David Mullins and Charlie Craig, arguing that making a cake to celebrate their marriage would violate his Christian faith. Messrs. Mullins and Craig filed charges against Masterpiece Cakeshop with the Colorado Civil Rights Commission. So far, Masterpiece Cakeshop’s defense has been unsuccessful in the lower courts, and the case will now be heart by the Supreme Court this fall, with the likely result another 5-4 decision, with the ruling going either way.
Should the Supreme Court rule in favor of the baker, private businesses that disagree with same-sex marriage would be able to deny same-sex couples services based on the businesses’ or employees’ religious beliefs. Some may argue that a same-sex couple that is denied services should simply take the time to locate another business that would provide the services. Not only does that violate the principle that businesses open to the public should serve all of the public but it also presents a host of practical complications. The next business that may perform the services could be far away or the services could be more expensive. Businesses that have the same discriminatory policies could form coalitions that would effectively keep same-sex couples from living in certain communities by refusing to provide services. Such businesses could market their discriminatory policies in ads to draw customers who share their views while keeping same-sex couples out.
Many people thought that the Obergefell v. Hodges, the 2015 Supreme Court decision that established a constitutional right to same-sex marriage, resolved the issue as to whether same-sex couples should receive equal treatment with opposite-sex couples. However, people who still oppose same-sex marriage have regrouped and are now attempting to restate a previous failing position by injecting a First Amendment argument. Before Obergefell, opponents of same-sex marriage claimed the U.S. Constitution did not protect same-sex marriage; after Obergefell, the remaining opponents now claim that that they disagreed with same-sex marriage based on religious beliefs all along.
When Mr. Trump was a candidate, he pledged his support for the LGBT community immediately after the Pulse Nightclub massacre in Orlando. During the Republication National Convention, he said he would do everything in his power to protect the LGBT community from violence and oppression. However, Mr. Trump’s position in support of the baker and his determination to make the judiciary more conservative means that LGBT rights will continue to be under attack by opponents of same-sex marriage who want to use the courts to roll back protections for the LGBT community.
Mitch McConnell, the Senate majority leader, made the situation worse for the LGBT community when he stole a vacant Supreme Court seat from President Barack Obama by refusing to so much as hold a vote on any nominee for Mr. Obama’s last 11 months in office. He destroyoed the long standing opportunity to filibuster Supreme Court nominees and ignored Democrats’ concerns to confirm ultra conservative activist Justice Neil Gorsuch in just three months. It is highly likely the Supreme Court will have one and maybe two more vacancies in Mr. Trump’s first term.
With the Democratic Party in the minority unable to stop the Republican-controlled U.S. Senate from confirming conservative judges and Supreme Court nominees, and Mr. Trump’s determination to fill judicial vacancies with conservatives, the LGBT community may lose all protections, including the right to marry, by the time Mr. Trump’s first or second term ends.
David Placher is a writer for Baltimore Outloud. He is also chairman of Smarter Baltimore Gov (www.smarterbaltimoregov.com). He can be reached at firstname.lastname@example.org