Arielle Clarkson with Equality Texas
Local experts discuss ramifications of SCOTUS ruling
Mathew Shaw | Contributing Writer
A panel of legal experts discussed the consequences of a recent Supreme Court ruling in favor of an anti-gay baker at an event recent at Resource Center. The panel included Eric Rothschild, senior litigation counsel at Americans United for Separation of Church and State; Rebecca Robertson, chief program officer for Equality Texas, and Dallas lawyer, mediator and arbitrator Shelly Skeen.
Last month, the Supreme Court issued a narrow ruling in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, declaring that a Colorado law that prohibited discrimination against LGBT people was not applied fairly toward a baker who refused a wedding cake for a gay couple.
The court noted that the Colorado Civil Rights Commission made disparaging comments toward the baker’s religious beliefs.
Though the court did not strike down Colorado’s anti-discrimination law and did say LGBT persons are afforded protection, the ruling says people with religious beliefs against gay marriage should be protected, too.
“[The Supreme Court ruled] on the basis of the free exercise clause that the baker did not get a fair shake,” Skeen explained. “There were a couple of commissioners who made some statements that sounded like they weren’t giving consideration for the baker’s religious beliefs. One said religion was often used as a despicable and rhetorical way to tolerate discrimination.”
But the question of whether freedom of speech can be used to deny people services remains unanswered, Skeen continued.
“What it did was it left open many, many issues about whether a cake is free speech, whether a cake sends a message, what it looks like when it might be possible to use your religious beliefs to deny someone service,” Skeen continued. “All of these were not answered. That’s what’s coming next. It’s already happening all over the country.”
The law firm that represented the baker, Alliance Defending Freedom, considers Masterpiece a win because of a strategy used by the group, Robertson said.
“They are bringing these cases all over the country in an effort to create the law. We call it impact litigation,” Robertson explained. “In portraying [the baker] in the way that they do as a hero in religious liberty, they’re really inviting people to take similar steps in their own communities and see if they can find some other cases.”
Rothschild said many of these cases have been dealt with in lower courts.
“There’s flower shops and invitation stores and videographers,” he said. “Often in these cases it’s not even a dispute like the Masterpiece case where you had customers and public accommodations in disagreement, but companies that want to discriminate, bringing lawsuits before they even start selling. They’re really seeking out the liberty.”
For example, during the same week that the Masterpiece decision was announced, the Arizona Court of Appeals upheld a Phoenix, Ariz. anti-discrimination ordinance that was challenged by a for-profit company seeking a First Amendment exemption.
The judge who wrote the decision cited Masterpiece, stating that allowing businesses to deny services to customers based on sexual orientation would be a “grave and continuing harm.”
Notably, the business that challenged the ordinance, Brush & Nib Studio, had never had a same-sex couple requesting their service.
Rothschild said that case is a sign that courts will read Masterpiece as narrowly as it was written.
But with Justice Kennedy retiring and possibly being replaced by conservative Judge Brett Kavanaugh, the dynamics of the court could change, considering how important Kennedy was to LGBT civil rights, Skeen said.
“Justice Kennedy was important because he was the guy that said that everybody should have a certain basic level of dignity, and what he did with respect to the liberty interest, which is found in the Fourteenth Amendment,” Skeen said. “He was really a champion of individual liberty rights.”
Robertson added that Kennedy authored every Supreme Court opinion important to LGBT rights, from striking down sodomy laws (Lawrence v. Texas in 2003) to Colorado trying to amend its constitution to forbid gay rights (Romer v. Evans in 1996).
“It’s also important for us as a community to recognize that the Supreme Court rarely leads on these issues,” Robertson said. “Part of what makes it possible for the Supreme Court to rule is when our community is changing the hearts and minds of our neighbors.”
As for the prospects of Kavanaugh ruling on LGBT cases as a Supreme Court justice, he has not yet had an LGBT case, Rothschild said. But his opinion over contraception coverage under the Affordable Care Act is concerning.
“He was insisting that religious organizations not only could get out of providing contraceptive coverage but could get out of participating in the process, to opt out of even the accommodating, which is basically filling out a simple form,” Rothschild said.
Skeen said the courts are an important safeguard of people’s rights, which is why people need to let their legislators know how they feel about potential nominees.
“We have the three branches of government. The one check and balance that has always upheld fundamental rights for the last 75 years has been the Supreme Court,” she said.
In the meantime, the panelists offered suggestions on helping to change hearts and minds to eventually effect changes in the law.
“[Americans United for Separation of Church and State] started an initiative called Protect Thy Neighbor directed at exactly this kind of religious refusals,” Rothschild said. “We encourage reporting from people who are discriminated against on that basis, and we advocate in legislatures and work with coalitions, and we also bring cases.”
Skeen said that victims of discrimination need to create a record of their stories and send them to organizations like Texas Workforce Commission, Texas Commission on Human Rights, LGBT Coalition for Aging and Dallas LGBT Bar Association.
The panel answered questions from the audience and touched on what public accommodations are, what constitutes sincere religious beliefs and what is compelled speech.
“[Public accommodation is] if you’re a business that opens your doors to the public,” Robertson said. “It could be a bowling alley or hotel or restaurant or shop, but it’s a place that is open for business to the public.”
Rothschild said courts are deferential to persons asserting religious beliefs.
“Most of these cases are coming up with somebody coming from the majority religion,” he said. “If somebody belonged to the Church of I Like to Smoke a Lot of Marijuana, the cases are not treated as sincere religious beliefs. There is a privilege given to mainstream religions.”
Skeen said compelled speech has to do with refusing to speak and not refusal to do things, and the medium of the speech must also be considered.
“Traditionally and historically has it been speech?” she said. “For example, a novel, a song, a painting, all of those things traditionally have been considered a type of speech. But wedding cakes — not a type of speech. Cakes are to be eaten.”
Robertson added that nobody is required to sell wedding cakes. Rothschild said that only Justices Gorsuch and Thomas have signed onto the “free speech as a means to discriminate” argument.
At the end of the evening, Arielle Clarkson, DFW regional field coordinator for Texas Freedom Network, issued a call for action to the audience.
First, she implored the audience to register to vote: “I think we take that for granted,” Clarkson said. “I mostly work with college students, and you would not believe how hard it is to convince them that they need to show up to the polls.”
Clarkson said that the issues we vote on are intersectional, that they affect everybody.
“Other people are affected by these civil rights violations,” she said. “Show up for yourselves; show up for your community, but show up for the other people affected. Share your stories of refusal. We need these stories. How do we create stories without experiences? The personal is political.”