The Supreme Court has just announced its decision in the Colorado “wedding cake case” by ruling that a baker who refused to bake a cake for a same sex wedding on religious grounds did not get a fair hearing before the state civil rights commission and shouldn’t be penalized. It was a 7-2 ruling, but a narrow one because the Court stopped well short of deciding broadly whether merchants have a constitutional right to deny service to gay people on religious grounds, mainly pointing out in this case that the Commission treated the baker unfairly and was biased in its ruling. But in issuing the decision, despite its narrow gauge, the Court seemed to be saying in several concurring opinions that it is receptive to indulging in more clarifying work on the issue, and advocates for protection of religious freedom have cause to be optimistic.
It appears certain that the issue will ultimately be resolved by further work on the public accommodations clause of the Civil Rights Act of 1964, either by state legislatures, Congress, and/or the courts, but will no doubt return to the Supreme Court with a more definitive vehicle. In fact, that might be sooner rather than later, because the Court will soon meet to consider a florist’s appeal of a Washington state supreme court’s ruling that she violated state law by refusing to provide wedding flowers to a same sex couple.
Many want to find an analogy with the public accommodation clause and its implications for racial discrimination by merchants and restaurants, but I believe there is a big difference. First, race and sexual orientation involve totally different considerations for discrimination. And with certain service-providers, including wedding cake designers and many others considered professionals, the product or service being supplied involves the provider as a participant in the event or mission of the customer, in this case, a wedding celebration. This is a much different situation from a simple hotel, restaurant, or retail store, which are clearly public accommodations to which the 1964 Act should apply in the vast majority of cases, but are professional services a public accommodation?
Again, ideas have consequences, and we find that we must continue to deal with the misguided ideas embedded in the Obergefell case of 2015, which granted a right to marriage for same sex couples. And despite the ruling in the cake case here, we still have four justices for whom the right to same sex marriage isn’t enough; they want to coerce celebration by all regardless of religious beliefs. At some point soon, we must revisit the public accommodations clause and address the differentiation I and several of the justices have noted and which I think has validity in protecting the religious liberty that is a vital underpinning of our constitutional order.