By: Ken Jensen

After reading the Court’s opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018), I am struck with how our society is still confused with respect to sexual orientation.  The Court struck down the Colorado Civil Rights Commission’s actions to assess a cakeshop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration.  The result, however, is a bit ambiguous as to its future implications. The baker won, but only because the Court determined the commissioners displayed religious animosity.  The Colorado Civil Rights Commission’s failed to provide a “neutral and respectful” adjudication of Phillips’ religious claims, as the First Amendment’s free exercise clause requires.  In so ruling, the court did not establish the extent to which businesses can refuse service based their religious objections to potential customers.   As Elizabeth Clark stated in her piece on Scotus Blog, “on the one hand, the Supreme Court refused to grant unqualified protection to those who conscientiously object to providing goods and services to same-sex couples, and at the same time the court shut down efforts to assert that all forms of discrimination affecting same-sex couples should be labeled mere bigotry.”

Justice Kennedy’s opinion upheld “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” However, “[a]t the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”  We as a society are still in this middle place: having left outright rejection but still short of full acceptance of gay persons.

In thinking about the opinion, I recalled a book written by Yale Law professor, Kenji Yoshino, entitled Covering: The Hidden Assault on Our Civil Rights.  In this remarkable and personal book, Yoshino reveals his personal journey as a gay man in various demands for society conformity (“conversion, passing, and covering”.)  In the last phase – “covering” – being gay is acceptable as long as it “covered,” but not expressed.  Yoshino relates the personal toll this has on him – out of the closet, but still with a pressure to conform.  Yoshino’s masterful point is that society at large is on this same trajectory to greater acceptance, and is still stuck in a “covering” stage.

We are no longer in a conversion phase (as now reflected in the increased number of laws banning conversion therapy).  We have moved to “covering:” being gay is passively acceptable as long as people offended by it do not have to witness such an alternative lifestyle.

Then, there is watershed moment of Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).  There, we read these opening words: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).  We have moved.  In thirty years, we have traveled from upholding the criminalization of same sex expression (Bowers), to invalidating those very laws (Lawrence), to now protecting the right of expression of identity.   The trajectory of liberty points to acceptance.  The Court recognized the transition eloquently: “While Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty. Obergefell v. Hodges, 135 S. Ct. 2584, 2600, 192 L. Ed. 2d 609 (2015).

But with the struggle in Masterpiece Cakeshop, it is premature to state that we have fully arrived to the liberty that Obergefell so eloquently points.   The Court indicated that compelling any person (be it a baker, a florist or photographer/ web designer) to promote a particular message contrary to their sincerely held beliefs would seem to run afoul of free speech protections.  However, the Court in Masterpiece seems to distinguish “custom-made” cakes from “off-the-shelf” cakes sold to the public.   The Court affirmed Colorado’s anti-discrimination legislation and explicitly rejected the ability of businesses to outright reject all services to gays and lesbians.   The Court states: “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.”

But tolerance is different from acceptance.  Until a gay person can walk into a business without the need to pretend to be someone her or she is not, we as a society have not achieved the “full promise of liberty.”  The law may be limited in its ability to force such a societal shift, but it can continue to point in that direction.