Cases of Conflict: Religious Rights in the Issue of Refusal of Service
The Case of the Baker: Jack Phillips of Denver, Colorado grabs headlines as a homophobic cake artist
In 2019, Jack Phillips, owner of Masterpiece Cakeshop in Denver Colorado, grabbed local and international headlines as he claimed violation of his rights of religious freedom filing his 26 page long motion to dismiss citing 46 other related cases on the account of a lawsuit originally filed against him by the Colorado Civil Rights Commission in 2017 which was an answer to a complaint made against him over a gender transition cake.
The case involved Autumn Scardina, a Denver-based attorney and activist, who ordered a custom pink cake with blue frosting celebrating her birthday and marking the seventh year of her transition from male to female. Jack refused his service to make Scardina her cake as he argued that the cakes he creates is his art that reflects his values in life and through which he can praise his God. Had it been a simple pink and blue cake, Jack said that he would have no qualms doing it.
Two years later in March, the commission dropped the case allegedly reaching a settlement with Jack Phillips and his team but the spokesperson of Scardina refuted the claims of a settlement and clarified that they had no input on it. This prompted Scardina to sue Phillips on her own.
Scardina filed suit in the state court under allegations of illegal discrimination on the grounds of the Colorado Anti-Discrimination Act and Colorado Consumer Protection Act which is seeking a total of $100,000 in damages. The Scardina lawsuit also noted the claims of Jack Phillips under false pretense that he is open to creating cakes, including birthday cakes, for the LGBTQ+ community. In her statement, Scardina expressed that Masterpiece Cakeshop had already agreed to create her birthday cake but was ultimately turned down upon knowing that she is transgender.
The Alliance Defending Freedom or ADF which is an alliance-building and non-profit legal organization who are composed of advocates of religious freedom who represented Jack Phillips in the case has expressed that this new lawsuit was only an attempt to harass Phillips for living out his faith and added that, “It’s time to move on and leave Jack alone.”
But news outlets called him out as third’s time not a charm as this was not the first time that Jack Phillip’s face had been plastered all over the news for the same homophobic lawsuit. In 2012, his refusal to create a wedding cake for a same-sex couple has caught the attention of many and had been one of the most heated debates surrounding refusal of service centered around religious rights and disguised as a legal discrimination.
Under the facts of this case, Craig and Mullins filed charges against Masterpiece Cakeshop with the Colorado Civil Rights Division under the same Colorado Anti-Discrimination Act (CADA) used by Autumn Scardina in her case. The case was then forwarded to the Office of Administrative Courts where the couple filed a formal complaint stating that they have been discriminated against in a place of public accommodation which is a direct violation of CADA. The presiding judge ruled in their favor and affirmed by the Division and consequently on the Colorado Court of Appeals as well.
But years later, this issue was then again challenged and in 2018, the Supreme Court dropped an overturning 7-2 decision which held the former affirmed decision in favor of Craig and Mullins as a violation of the baker’s Free Exercise of his religion under the First Amendment.
Outcries of rage and disappointment all over the world had been directed at this decision. The Court explained its ruling that while gay persons and same-sex couples are provided constitutional civil rights protection, refusals of service or in general, objections based on religion and philosophy are also protected views. Thus in this case, the majority of the Court concurred that the Anti-Discrimination Act of Colorado should be applied neutrally with regard to religion. Although dissenting opinions from other judges noted that the alleged disparate treatments towards bakers who refused to create cakes with anti-gay messages do not justify ruling in favor of Phillips. They weren’t just two sides of the same coin. They’re different coins.
As of this time, people await the decision regarding Scardina v. Masterpiece Cakeshop as the Court is weighing its decision. So the question is will the Court affirm the 2018 ruling on the Craig and Mullins case and dismiss the case entirely or would it proceed to give hope of overturning an overturned decision?
Will it finally put a clear answer whether business owners have the right to refuse their service on account of their own faith? LGBTQ+ discriminations guised on the issue of religiously based service refusals.
The First Amendment states it in its “Free Exercise Clause” that every individual has the right to have his or her own religion, observe its practices, and exercise it freely both in public and private. But what if the same right that gives protection is also the same one that stomps on another?
Religious rights in context of discrimination such as refusal of service will always be studied under the context of the LGBTQ+ community as these are two longstanding conflicting “entities”.
For the longest time, religion has been in conflict with the LGBTQ+ arguing that this community is no creation of God rather they are what to be named as abominations. And this rooted mindset and conflict has sparked a lot of hatred and discrimination towards the community. Not to mention that they are in a position of legal vulnerability with federal discrimination laws not expressively putting sexual orientation or gender under the list of protected class which should provide them protection against discrimination especially in employment, housing, and access to services. Although progress in the movement to attain equal rights have won some states to offer explicit protection toward the LGBTQ+ community.
But the fight for equal rights and prohibited discrimination is a tough one as those who oppose, largely of religious background, are pushing for laws for their own convenience such as carving out religious exemptions to provide legal back-up in their noncompliance with laws that “violate” their religious beliefs although this is not a concept in bearing exclusively for this issue. The main takeaway in exemption laws based on religious liberty is it’s always bound to harm, directly or indirectly, the LGBTQ+ community. This coupled with legal vulnerability has put the LGBTQ+ under discrimination with a slim chance of protection.
In the case of refusal of service, individuals identifying as LGBTQ+ are required to invest additional resources to find those who are willing to provide their needs and if they do not, they are forced to give up. Asserting their right to service is a course they are not brave enough to take since there is also the issue of somehow an internalized discrimination wherein they are already expecting such and for the sake of self-preservation, they take extra precaution and to a more serious extent, completely avoid the scenario at all.
The case of the baker is not the only case of religious rights impinging on the right of LGBTQ+ individuals to access service.
Take for example the case of the Christian Bakers who were fined $135000 for refusing to make a cake for a gay couple’s wedding. Sure, it sounded like a win but the back story and the effect of this kind of pedestal religious right is what makes it terrifying.
The facts of the case are the same narrative as Jack Phillips’. Melissa and Aaron Klein declined to make a cake for a same-sex wedding as this would violate their Christian faith. Under Oregon state law, it is an illegal act to refuse service on the basis of a customer’s sexual orientation, race, gender, and other protected class stated under the federal law. The Oregon Bureau of Labor and Industries has ruled in favor of the lesbian couple and the Kleins were forced to pay fine for physical, emotional, and mental damages. Furthermore, continuing protests against their refusal has forced them to close shop as well.
But what the headline did not tell was that the Kleins gave out personal information of the lesbian couple and encouraged death threats to be sent to them forcing the couple quit their jobs and to run out of their homes. The Kleins also petitioned to have the couple’s children taken away and even raised half a million dollars for that!
The lesbian couple were going to get married because a mutual friend of theirs had died and they wanted to adopt the two daughters she left behind. It was never just about the cake. They won the case but it really didn’t feel like winning.
Another case that you can look at is the refusal of a Tennessee pastor to give a dying man a funeral because of his gay son who was engaged to his partner. According to an article by MetroWeekly, Goodman’s father was 71 years old then and had only a few days to live and in his dying wish he requested that his funeral be held at a Baptist Church in Sweetwater, Tennessee and that his son to sing “The Anchor Holds” during the service.
As soon as officials discovered that Goodman and his partner would be involved in the funeral proceedings, they refused the service of the church. As Goodman has said, “They’re punishing my dad for a lifestyle choice I’ve made. It’s not me up there in a casket. It’s him.”
Here, we see the extent of religious rights playing into the role of refusal of service. Although this did not proceed as a case, it’s clear as to how religious rights can be used as advantage when convenient.
Other popular cases encircling this issue is the case of Ingersoll & Freed v. Arlene’s Flower Inc. The facts of the case state that since Ingersoll has purchased flowers from Arlene’s Flower Shop multiple times on many different occasions, he approached the florist to arrange flowers for their wedding but was told that the business cannot sell and arrange flowers for the event as this conflicts with the owner’s religious beliefs. The couple proceeded to file a case and won in the Washington Supreme Court as the flower shop violated the Washington Law against Discrimnation and the Consumer Protection Act.
Another one is the case of Bakers and Linsley and the Wildflower Inn in 2010 wherein the innkeepers Mary and Jim O’Reilly refused to host a lesbian couple’s wedding reception due to cited personal feelings. Wildflower Inn is a picturesque landscape which promotes itself as an ideal place for any romantic getaway. During the course of planning, the mother of Linsley, the bride, has received promotional material for the said inn but when she informed the staff for the “bride & bride” reception, the events director followed an email of bad news. Vermont has emplaced a Fair Housing and Public Accommodations Act which prohibits any form of discrimination such as the denial of goods and services on the grounds of sexual orientation. This law is applied to all businesses serving the general public but exceptions were made for religious organizations and small inns with five or less accommodating rooms.
The couple filed a suit and in settlement the Inn shall pay $10000 to the Vermont Human Rights Commission, $20000 to the Linsleys to be disbursed in a charitable trust. In addition, it has also agreed to no longer host any wedding receptions in the venue.
There is also the case of Elane Photography vs Willock in 2013. Elane Photography is a wedding photography service accommodating the general public. One time, Vanessa Wilcock contacted the photography services to inquire if they’re available to document her commitment to another woman but Elain Huguenin, owner and lead photographer, had personal objections towards same-sex ceremonies and refused her services. Wilcock filed a case against the photography service on the grounds of the New Mexico Human Rights Act which prohibited public accommodations from discriminations against individuals based on their sexual orientation to which she won. Elane Photography filed appeals but were ultimately found guilty.
In summary of these cases, all LGBTQ+ individuals and couples alike were refused of service, they filed a case, and they won. The pattern is the same but why is the same thing still happening? The list is getting longer but LGBTQ+ Community remains to be at a disadvantage where they have to file a lawsuit to prove their case and win their right even with a state law governing these businesses against specific discrimination towards their community.
Opinion: What is the conflict?
The conflict most likely lies on the coverage of the law that provides protection to the LGBTQ+ especially under the federal government. In the Civil Rights Acts of 1964, gender and sexual orientation are not deliberately listed as a protected class. States have compensated for this by enacting laws under their jurisdiction to handle cases like the ones mentioned above although not all have adopted laws that prohibit discrimination against the LGBTQ+.
The conflict can also be woven in the interpretation and the dealing with such matters of the law in terms of a judge ruling to protect religious liberty at the cost of the right of another class just like the case of Jack Phillips who got his case overturned by the Supreme Court and won.
In a more loose context but albeit a valid one, refusal of services such as the cases above can be taken in the context of the Red Hen controversy. White House press secretary Sarah Sanders and her family were asked to leave in a restaurant named Red Hen in 2018 as a form of protest against the Trump Administration. A lot of people have expressed disappointment towards the alleged rude attitude shown by the staff and owners of Red Hen and have consequently fired up discussions in relation with the then 2018 ruling in favor of baker Jack Phillips. Jack’s case had “proven” the right of a business owner’s right to act on their own beliefs so why is not the same energy directed towards Red Hen and at that, there were no laws governing protection of any political belief thus no laws were violated in that situation.
In most of the cases discussed, the people refusing their services were acting on their own personal beliefs regardless of any law that encompasses them. They believe that they have ultimate power over the service that they provide and a simple declination of a request is only a refusal and not meant to be discriminatory. But in actuality, businesses refusing service against a group of people even when the law prohibits them so is discrimination. It sets a dangerous precedent that the rights of those they refused and even so, their well-being are not valued. Instead, these rights are dependent on the goodwill of others. To add to that thought, refusal of service under religious liberty context is a discriminatory act as it puts down the right of others to uphold one’s own.
So the question that begs to be answered is: Does your religious rights given to you by the Constitution give you the license to discriminate?
No. It is never anyone’s right to discriminate against anyone. The religious right was born upon the merits of discrimination against religion and to use it as a tool for advantage defeats the purpose of its creation. A right should be equal and should be a tool to be used by those who are disadvantaged. No right should be above another right.
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