What Does the “Same-Sex Wedding Cake Decision” Mean?

How will the Supreme Court’s recent “same-sex wedding cake” decision impact businesses and their potential clients in the future? Some see the ruling as a restrictive blow to the LGBTQ community, while others see it as a victory for the freedoms of expression and religion. In reality, this particular judgment in favor of the baker who refused to create a same-sex wedding cake for a gay couple probably changes very little for either side.

In 2012, Dave Mullins and Charlie Craig, a same-sex couple, asked Masterpiece Cakeshop of Colorado to create a wedding cake for them. The bakery’s owner, Jack Phillips, refused, saying that it would violate his religious beliefs to support or take part in a same-sex wedding.

Mullins and Craig made a complaint to the Colorado Civil Rights Commission. The Commission ruled that Phillips and his bakery were in violation of Colorado law, which prohibits discrimination on the basis of sexual orientation. The Colorado State Supreme Court upheld the Commission’s decision.

Following the ruling, Jack Phillips appealed the case to the U.S. Supreme Court. Phillips argued that being required to use his artistic talent in support of same-sex marriage violated his First Amendment right to free speech. Phillips also argued that, because of his religious beliefs, requiring him to participate in the celebration of a same-sex wedding was a violation of his First Amendment right to freedom of religion.

In a decision that surprised many, the Supreme Court ruled 7-2 in favor of Phillips and Masterpiece Cakeshop. But the court’s judgment should not cause us to make assumptions about what could happen in the future if another business, such as a bakery, refuses services to a gay couple, such as, say, making a same-sex wedding cake.

Do businesses now have the right to refuse gay clientele?

Following news of the same-sex wedding cake ruling by the Supreme Court, social media lit up with photos of businesses displaying signs that declared “gays not welcome” and similar sentiments. Those who oppose not only same-sex marriage, but also the LGBTQ community, felt justified and safe to proclaim their bigotry out loud.

But the Supreme Court ruling does not grant businesses the right to refuse gay clientele, and it doesn’t grant them the right to refuse to bake a same-sex wedding cake. The Supreme Court made it clear that its ruling was not to decide the question of whether people have the general right to refuse to serve LGBTQ customers based on religious objections.

Justice Anthony Kennedy, who wrote the Supreme Court’s decision, stated “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” saying further that “religious protections do not generally extend to business owners refusing to provide equal access to goods and services.”

Why did the Supreme Court rule the way it did?

Though Jack Phillips and Masterpiece Cakeshop were found by the Colorado State Supreme Court to be in violation of state laws against discrimination on the basis of sexual orientation, the U.S. Supreme Court examined the case from a different angle. It found that the Colorado Civil Rights Commission had handled the case unconstitutionally, in an unfair and biased manner hostile to religion. Remarks from at least one commissioner showed an inability by the commission to honor Phillip’s constitutional right to a fair and neutral hearing.

The U.S. Supreme Court’s ruling in favor of Phillips and Masterpiece Cakeshop did not clearly address either of Phillips’ arguments that his freedoms of speech and religion would be violated if he were ordered to create a same-sex wedding cake. Consequently, similar cases in the future will need to be decided apart from the ruling made here.

Why does the ACLU consider this a victory, of sorts?

Louise Melling, deputy legal director of the ACLU, said, “The Court reversed the Masterpiece Cakeshop decision based on concerns unique to the case, but reaffirmed its longstanding rule that states can prevent the harms of discrimination in the marketplace, including against LGBT people. The Court today reaffirmed the core principle that businesses open to the public must be open to all.”

The recent “same-sex wedding cake” ruling by the U.S. Supreme Court doesn’t provide guidance as to whether artistic expression in the form of food creation is considered free expression. Neither does it advise whether it is a violation of freedom of religion to require a baker to make a same-sex wedding cake when it goes against his or her religious convictions. But it also does not provide any legal ammunition for those business owners who would mistake the ruling for permission to discriminate or refuse services based on sexual orientation. The next bakery owner who refuses to bake a same-sex wedding cake under similar circumstances is likely to find himself or herself in a similar legal position, which will be judged separately from this case.

What You Should Know About The Supreme Court’s Wedding Cake Decision (HBO) | VICE News [2018-06-05]

U.S. Supreme Court sides with baker in same-sex wedding cake case |
Atlanta Journal-Constitution [2018-06-04]

HHS Division of Conscience and Religious Freedom: A Slippery Slope

The Department of Health and Human Services (HHS), under Donald Trump, is creating a new enforcement division: The Division of Conscience and Religious Freedom. The new HHS division, supporters say, establishes protection (referred to as “conscience protections”) for health care workers who refuse to treat certain people (such as transgender people), or perform certain procedures (such as an abortion) due to religious or moral objections.

The Trump Administration’s creation of the new HHS division repeals an Obama policy that prohibited health care professionals from refusing to provide services on grounds of moral or religious beliefs. This reversal raises a number of issues with people who think beyond the doctrines that shape the world of any single group of people.

A source in Congress said, “It is expected that the HHS Civil Rights Office would devote resources and personnel to enforcing the new guidelines and ensuring compliance.”

A government agency with the name, Division of Conscience and Religious Freedom, sounds uncomfortably close to Committee for the Promotion of Virtue and the Prevention of Vice, the enforcer of Shariah law in Saudi Arabia. Should an agency of the United States, which is not a religious state, establish a division whose purpose is, essentially, to enforce compliance with the tenets of one religious ideology or moral stance over another? Should our government be supporting anyone’s religious or moral convictions over anyone else’s?

On the one hand, the Constitution guarantees freedom of religion in the United States. But freedom extends equally to all Americans. The principles of freedom of religion and other civil rights do not define freedom to the extent that one suppresses the freedom of someone else who is lawfully enjoying theirs.

One could argue that requiring health care workers to provide care or services that conflict with their religious beliefs or moral stance constitutes suppression of freedom for the health care worker. Which set of moral or religious beliefs should take precedence, then?

And how does one arrive at the idea that requiring a health care provider to administer health care (which it is their job to do) discriminates against the health care provider, if the health care service itself does not violate the law? Abortion, for example, is legal. Shouldn’t people who enter a profession perform the lawful duties and services that apply to their profession?

The establishment of the Division of Conscience and Religious Freedom raises additional questions:

  • Isn’t the refusal to provide health care services to certain groups the equivalent of saying that they don’t deserve health care?
  • Does this new division, established to protect religious freedom, really protect every health care worker to act in his or her conscience, or does it just protect them if their conscience conforms to certain ideologies?
  • Will the Division of Conscience and Religious Freedom also protect an objecting health care worker who refuses to even refer a person to a provider who won’t object to treating them?
  • Can the the U.S. government, in good conscience, really “devote resources and personnel” to the enforcement of compliance with this, while not addressing crucial issues such as affordable and accessible health care for Americans?
  • Will those who are opposed to a patient’s religious convictions (let’s say, “Christian,” for this example) be allowed to refuse to treat that person?

The HHS Division of Conscience and Religious Freedom perches on a slippery slope. The fact that it not only allows a health care worker to refuse to treat a patient based on personal beliefs, but enforces that stance, should scare us.

OCR New Conscience and Religious Freedom Division Announcement | U.S. Department of Health and Human Services [2018-01-18]

HHS Expected to Unveil ‘Conscience Protections’ | Hot Trending [2018-01-17]