In just a little over a month, the big bronze doors of the U.S. Supreme Court building will swing open as a gay plaintiff emerges with his attorneys, squinting from the sun off the white marble steps. They'll cluster in front of a mob of reporters and cameras on the plaza in front of the famous facade. And they'll explain how they believe the justices heard their plea: that same-sex couples should be treated the same as male-female couples.
Wait. What? The Supreme Court is going to argue the same-sex marriage ban, again?
Not exactly. But on so many levels, the Supreme Court's December 5 review of Masterpiece Cake v. Colorado will feel like d�j� vu.
Two years ago, in Obergefell v. Hodges, attorneys for LGBT people successfully argued that states should treat same-sex couples the same as male-female couples in the issuance and recognition of marriage licenses. Two years prior to that, in U.S. v. Windsor, the winning argument was that the federal government should recognize the marriages of same-sex couples are the same as male-female couples for federal purposes. And that same year, in Hollingsworth v. Perry, the court heard that California voters should be able to deny marriage licenses to same-sex couples, but threw out the case on a technicality, restoring same-sex marriage in the Golden State. And 11 years ago, in Romer v. Evans, the argument was over a law passed by Colorado voters, seeking to enable businesses, landlords, employers, and others to ignore local laws prohibiting discrimination based on sexual orientation. The court ruled they could not.
Now, with Masterpiece Cake, the court will consider whether a business in Colorado can ignore a state law prohibiting discrimination based on sexual orientation in order to refuse service to same-sex couples.
In the case this year, the business is a baker who specializes in elaborately decorated cakes, suitable for a wedding reception. But the baker, Jack Philips, refused to sell any of his ornate cakes to couple Charlie Craig and David Mullins, claiming that to do so would offend his religious beliefs - beliefs that purportedly consider marriage between two people of the same sex to be a biblical offense.
The claim conjures up great moments in the history of the U.S. Supreme Court. In 1968's Newman v. Piggie Park, the owner of some drive-in restaurants had argued that a federal law prohibiting discrimination based on race in public accommodations "contravenes the will of God and constitutes an interference with the free exercise" of the business owner's religion. The high court did not agree. In fact, it referred to the argument as "patently frivolous."
And four years earlier, in Atlanta Motel v. U.S., the high court ruled against the owner of a hotel in Atlanta who refused to accommodate blacks. The owner claimed the federal public accommodations section of the Civil Rights Act deprived him of his liberty and the right to choose with whom he would do business.
"I remember the signs that said 'Whites Only' and 'Colored Only,'" said Representative John Lewis (D-Georgia), a leader of the civil rights movement and a strong ally of the LGBT civil rights movement. "I remember when, everywhere you looked, there was blatant discrimination against people based on the color of their skin. It's time you learn that the tactics may change, but the will remains the same. Each and every one of us has an obligation to speak up and speak out for the right of each and every person to be treated with dignity and with respect."
Lewis was one of several speakers on an American Civil Liberties Union-sponsored telephone press conference October 30, drawing attention to the vast number of briefs that have been filed in the Masterpiece Cake case. They include the NAACP, the Leadership Conference on Civil and Human Rights, 1,300 faith leaders, 200 members of Congress, 150 mayors, hundreds of chefs and restaurant owners, and such major corporations as Apple and Marriott.
While the Masterpiece Cake case represents an instance of a same-sex couple being denied service at a bakery, Rachel Tiven, chief executive officer at Lambda Legal Defense and Education Fund, said her group has received reports of same-sex couples being refused service at a wide variety of public accommodations venues. Among them, she said during Monday's press briefing, have been hotels, doctors' offices, childbirth classes, funeral homes, tow truck operators, and homeless shelters.
James Essex, an attorney with the national ACLU, which is representing Craig and Mullins, said the question before the court is whether the Constitution protects a right to discriminate "based either on religion or artistic freedom." And the position taken by the Trump administration and attorneys supporting Phillips, is "extreme and could well license discrimination against many people."