The Supreme Court announced on Monday that it will hear a constitutional challenge to Colorado’s LGBTQ nondiscrimination statute next term. The case, Masterpiece Cakeshop v. Civil Rights Commission, could carve a hole in civil rights law by prohibiting states from protecting same-sex couples’ rights in the name of religious liberty.
Masterpiece Cakeshop involves a Colorado bakery that refused to sell a cake to a same-sex couple. The couple filed a charge of discrimination with the state’s Civil Rights Commission since Colorado law explicitly bars sexual orientation discrimination in public accommodations. Predictably, the commission agreed that the store had discriminated on the basis of sexual orientation and fined it accordingly. The shop appealed, alleging that the sanction violated its rights under the free speech and free exercise clauses of the First Amendment. But the Colorado Court of Appeals rejected its arguments, holding that states may constitutionally outlaw anti-LGBTQ discrimination. The store appealed, and now the United States Supreme Court will review the lower court’s decision.
I find it deeply disconcerting that the Supreme Court chose to hear this appeal. It does not bode well for LGBTQ rights. The justices could have easily declined to take the case without comment. Or they could have simply affirmed the judgment below without hearing arguments. That solution would’ve been eminently sensible since the court has never held that commercial businesses have a constitutional right to discriminate against a certain class of customers.
Instead, however, the court took the case—strongly indicating that at least four justices think the Colorado court got it wrong. (It takes four votes for the Supreme Court to hear a case.) Put differently, four justices are willing to entertain, and probably accept, the bizarre argument that a standard LGBTQ nondiscrimination law violates businesses’ freedom of speech and religion. This radical idea would once again reduce same-sex couples to second-class citizens. Even same-sex couples in LGBTQ-friendly states could not be sure that businesses—from cake shops to restaurants to hotels—would agree to serve them. After all, these businesses would have a constitutional right to turn away same-sex couples at the door.
This bloc of justices requires just one more vote to make its view the law of the land. Perhaps Justice Anthony Kennedy will side with the liberals and hold that the Constitution does not require such discrimination in the realm of public accommodations. But his track record in this area is not encouraging—and Justice Neil Gorsuch revealed on Monday that he opposes LGBTQ rights. The outcome of Masterpiece Cakeshop is thus anybody’s guess. Make no mistake: Monday’s announcement means that nondiscrimination laws across the country are in serious peril. After decades of progress, LGBTQ advocates may be on the verge of a constitutional catastrophe.
