Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?
A. On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief. The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.
In Masterpiece Cakeshop, Ltd, et al. v. Colorado Civil Rights Commission et al., a Colorado bakery owned and operated by a devout Christian refused to create a wedding cake for a same sex couple because of his religious opposition to same-sex marriages—marriages that Colorado did not then recognize. The couple filed a charge with the Colorado Civil Rights Commission, pursuant to the Colorado Anti-Discrimination Act (CADA),which prohibits discrimination based on sexual orientation, not only in employment, but also in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” The Commission ruled in the couple’s favor, concluding that the shop’s actions violated CADA. The Colorado state court affirmed the ruling.
The U.S. Supreme Court reversed the decision, however, siding with the baker. The Court focused on comments made by the Commission that were disparaging towards the baker’s religious beliefs, concluding that the Commission had failed to apply state laws in a manner that was neutral towards religion. According to the Court, while “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “the exercise of their freedom on terms equal to others must be given great weight and respect by the courts,” in ruling in favor of the same sex couple, the members of the Commission displayed open hostility towards religion.
The Court focused on comments by one commissioner during a public meeting on the case that “[f]reedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust… it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Court noted that: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.”
The Court also observed the Commission’s difference in treatment between this case and the cases of other bakers, where the Commission upheld the bakers’ conscience-based right to refuse to bake cakes with anti-gay messages. The Court found that the Commission’s treatment of these cases was inconsistent, and reflect a bias against Masterpiece Cakeshop’s religious beliefs. Accordingly, the Supreme Court held that the Commission’s treatment of the case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.
The Masterpiece Cakeshop case is a very narrow decision, and failed to address the underlying issue at stake – whether the First Amendment’s free exercise and free expression clauses protect the baker’s right to deny services to same-sex couples. In fact, the Court concluded its opinion by stating that: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
Although we will have to wait for future decisions to address the underlying Constitutional issues at play in this case, the Court expressly reaffirmed that certain laws provide protection for LGBT individuals against discrimination, while also noting that these laws must be applied in a manner that is neutral toward religion. Regardless of the narrow grounds upon which the Supreme Court decided this particular case, we recommend that employers treat sexual orientation and gender identity and expression as protected classifications. The EEOC has issued guidance finding that Title VII’s protections against discrimination “based on sex” extend to LGBT individuals, and numerous Circuit Courts of Appeals have extended Title VII’s reach in this manner. Moreover, state statutes and local ordinances in many jurisdictions expressly prohibit discrimination based on sexual orientation and gender identity.
—Tracey E. Diamond
Kali T. Wellington-James