By Jeff Milchen
December 5, 2017
A young couple on a long winter drive across the Rockies decides to rest for the night and finish their journey in daylight. There’s no reason to search hotel deals or review ratings; they approach the town’s lone motel and are relieved to see the neon vacancy sign. On arrival, the manager looks at them and asks, “are you a couple?”
After affirming, the manager refuses to accommodate them, saying his faith disapproves of interracial marriage. While the story sounds like a relic of the pre-Civil Rights Act era, a case argued in the U.S. Supreme Court December 5 could turn back the clock and enable business owners to selectively deny service.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, concerns Jack Phillips’ refusal to create a new cake for a male couple’s marriage celebration party, explicitly citing their being homosexual as the reason.
Charlie Craig and David Mullins successfully sued Phillips to prevent him from repeating such action under Colorado’s Anti-Discrimination Act, which prohibits businesses open to the public from denying service on the basis of race, religion, gender, or sexual orientation. Phillips then challenged the law on free speech and religious freedom grounds, arguing that requiring his business to craft a cake for the couple essentially forces him to endorse a lifestyle he considers immoral. His claim was rejected by lower courts.
As a lifelong small business advocate, I’m sympathetic to Phillips and believe he’s sincere, but disagree with his argument, which could render public accommodation laws like Colorado’s impotent. May a print shop owner refuse to print fliers for an organization she disagrees with? (surely an activity closer to free speech than baking). Religious freedom and freedom of speech are bedrock American values, but they do not provide justification for discrimination.
The American Independent Business Alliance (AMIBA), which I co-direct, supports public accommodation laws and joined a brief to the Court arguing such rules are necessary to safeguard civil rights. We also engaged because discrimination by any community-serving business harms other entrepreneurs. “When consumers have reason to worry that some businesses lining Main Street may refuse to serve them, the entire business community suffers,” our brief notes.
This has proven true not only in communities, but entire states. In 2016, North Carolina’s legislature passed a law that both voided Charlotte’s LBGT non-discrimination ordinance and required people to use public bathrooms corresponding to the sex on their birth certificate. Many individuals, performers, businesses and event planners boycotted the state in protest. Though few small businesses supported the law, many suffered as the state lost more than $3 billion in business before the bill was partially repealed.
While the Colorado couple enjoyed the option of choosing another baker at their leisure, allowing businesses to discriminate against customers invites more serious harm. When the lesbian mother of a two-year-old brought her daughter to an Austin, Texas dentist for emergency care, he refused to treat the girl without a birth certificate from the biological mother. A gay or interracial couple denied lodging could be forced to travel in dangerous conditions or in a tired state that endangers them and others.
While our federal Civil Rights Act explicitly prohibits racial discrimination in public accommodations, sexual preference is not mentioned. Colorado is among 21 states with laws explicitly closing that potential loophole.
Opening the door to religious claims as a basis for discrimination could endanger the rights of many others. This threat provoked leading disability rights groups to file a separate brief warning, “Many faiths have at least some citable, scriptural basis for shunning people with disabilities.” If public accommodation laws are undermined, atheists and other religious minorities also will be subject to abuse.
AMIBA and our cohorts on the Supreme Court brief hope to make clear Mr. Phillips speaks only for himself and that independent business owners overwhelmingly recognize their moral responsibility to serve and treat all people equally. And many are going further, stepping up in their communities to advance diversity proactively and help create a safe environment for all.
In an action without modern precedent, the Trump Administration had the United States government submit a brief to the Court opposing Colorado’s civil rights law. While Americans now must trust the Justices to uphold that law, the action is a clear warning that no civil rights may be taken for granted today.
Jeff Milchen co-directs the American Independent Business Alliance.
Supreme Court decisions generally are announced in May or June.