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Briefs filed in Supreme Court case describe rejection and harm experienced by LGBTQ community

SALT LAKE CITY — The stories begin with an unremarkable interaction.

“I was checking into my hotel.”

“I was at the doctor’s office.”

“I was ordering flowers.”

Matt Adler’s story starts with a Lyft ride. It was about a year ago in suburban Maryland, and his driver wanted to chat.

“He told me I was a bad Jew for using a car on (the Sabbath) and then noticed the pride rainbow on my yarmulke,” Adler said.

Within minutes, Adler stood alone on the side of the road, his driver’s homophobic slurs ringing in his ears.

“He (had) swerved to the side of the road and kicked me out,” he said. “I had to walk the rest of the way.”

Amicus briefs in support of Colorado and the gay couple
Amicus briefs in support of Colorado and the gay couple
Joseph Tolman

Rejection. Isolation. Anger. Those are the endings to stories scattered throughout the 45 amicus, or friend-of-the-court, briefs filed with the U.S. Supreme Court in support of the gay couple in the Masterpiece Cakeshop case. The submissions come after 46 briefs were filed in support of the rights of Christian baker Jack Phillips.

The case to be heard Dec. 5 asks a straightforward legal question: Does compliance with Colorado's anti-discrimination law violate a Christian baker's free speech or religious exercise rights? But the answer to be delivered by the court sometime before June 30, 2018, will have major ramifications for people of faith and the LGBT community, as the more than 90 briefs filed in the case illustrate.

The briefs filed on Oct. 30 in support of Colorado and the gay couple grapple with the constitutional issues involved, analyzing the legal precedent for non-discrimination protections. But many also pose a more emotional question: Why would the government allow LGBT Americans to be treated this way?

Amicus briefs in support of Phillips
Amicus briefs in support of Phillips
Joseph Tolman

Those who side with the Christian baker, Jack Phillips, argue that First Amendment protections override "hurt feelings," noted Chad Flanders, a law professor at Saint Louis University. Religious objectors to same-sex marriage can live their beliefs and those they can't serve can go to other bakeries, take a different cab or stay at a gay-friendly hotel just down the street.

"But (this case) is also about equality," he said. "If you're serving everybody except this one class of people because of race, gender or sexual orientation, there's a harm there that the law recognizes."

More than a cake

Charlie Craig and David Mullins were in the midst of wedding planning when they visited Masterpiece Cakeshop in July 2012. They asked about their wedding cake options and were told they didn't have any. Phillips, the store's owner, said he could sell them other baked goods but his religious convictions kept him from taking part in a same-sex wedding.

Masterpiece Cakeshop at-a-glance
Masterpiece Cakeshop at-a-glance
Joseph Tolman

"What should have been a happy occasion became a humiliating one," explains the brief outlining the couple's arguments, which was prepared by the American Civil Liberties Union.

The Colorado Anti-Discrimination Act prohibits discrimination based on sexual orientation in stores, restaurants and other places of public accommodation, so Craig and Mullins filed a complaint with the state. An administrative law judge, the Colorado Civil Rights Commission and then the state's court of appeals ruled that Phillips had engaged in illegal discrimination, forcing him to appeal to the Supreme Court. Last June, justices agreed to hear the case.

In September, 46 briefs joined by hundreds of religious organizations, legal groups and scholars outlined the baker's case. These religious liberty allies described cake decoration as a form of protected expression, wedding cakes as religious symbols and Colorado's anti-discrimination law as an imposition on religious freedom, as the Deseret News reported.

Now, responses are in from the opposing side in the case: the faith leaders, civil rights activists, legal experts and business owners who say Colorado — and policymakers in general — are right to force religious store owners to serve everyone.

"Friend-of-the-court briefs (were) filed by a wide range of voices that share our profound concern about the harm that could be done to civil rights laws if the court were to rule for the bakery in this case," said James Essecks, director of the ACLU's LGBT and HIV project, during an Oct. 30 press call.

Both sides agree on one issue: the case is about much more than baked goods.

Briefs siding with the baker describe the conflict as a symbol of the many ways people of faith are forced to compromise their beliefs to participate in the marketplace.

"This case is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere," reads a brief from legal scholars concerned with the constitutional rights of children.

Rejecting exemptions

Public accommodations laws originated more than 150 years ago, gradually broadening in scope as societal expectations changed, according to a brief from experts on these protections.

Today, those state and local laws mandate equal treatment for people of color, members of minority faiths and other protected classes. Twenty-one states, including Colorado, forbid sexual-orientation discrimination.

Utah's public accommodations law prohibits discrimination based on race, color, sex, religion, ancestry or national origin. It was not expanded to include sexual orientation or gender identity when legislators passed protections based on those traits in housing and employment in March 2015.

"All these antidiscrimination laws require is that if you sell a product, you have to sell it to everyone," said Elizabeth Sepper, a law professor at Washington University who has written on how religious freedom protections interact with public accommodations laws and was one of the authors of the brief.

Since Phillips designs and sells wedding cakes to heterosexual couples, he's obligated by Colorado's public accommodations act to do the same for homosexual couples, the Colorado Civil Rights Commission argued.

"If a retail bakery will offer a white, three-tiered cake to one customer, it has no constitutional right to refuse to sell the same cake to the next customer because he happens to be African-American, Jewish or gay," its brief reads.

The baker's lawyers from the Alliance Defending Freedom and others who filed briefs on his behalf do not dispute this interpretation of the law. However, they say the First Amendment justifies an exemption for business owners providing expressive services like cake decorating, who might feel forced to choose between condoning a same-sex marriage by participating in it or going out of business.

"This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context — in connection with a wedding," argues a brief for the baker from eight religious organizations, including The Church of Jesus Christ of Latter-day Saints.

In other words, Phillips' supporters say there's a difference between discriminating against an LGBT person and avoiding same-sex weddings. But that claim is rejected repeatedly — and in a personal, emotional way — in briefs filed for Colorado and the gay couple.

"If what you say is, 'I object to your wedding,' you're really saying, 'I object to you,'" said Rachel Tiven, CEO of Lambda Legal Defense and Education Fund.

Balancing burdens

As Flanders noted, some religious freedom advocates see Tiven's argument as an overstatement.

"For some, the common sense resolution is to buy a cake somewhere else," he said.

While acknowledging the inconvenience of being asked to go to another store, those supporting the baker see no lasting harm if a gay couple can easily obtain a cake elsewhere.

"The balance of hardships here tilts heavily in favor of petitioner. The same-sex couple who obtains a cake from another baker still gets to live their own lives by their own values, but (Phillips) does not. He must repeatedly violate his conscience or permanently abandon his occupation," reads the brief from the eight religious organizations in favor of the baker.

One of the challenges of this case is that choosing a wedding cake is not a life-or-death matter, Tiven said. It's tempting to believe that going to another bakery is not a big deal.

Wedding-related services are "benign and frivolous," she said. "But the real-life circumstances that people call us about are not."

Lambda Legal's brief, as well as filings from GLBTQ Legal Advocates & Defenders, the National LGBTQ Task Force and other advocacy groups, outline dozens of situations in which gay, lesbian and transgender Americans face discrimination. They describe rejection at fertility centers and funeral homes, tracing the pain that follows sexual minorities from birth until death.

Jack Zawadski scrambled to find help after the death of his husband, Robert Huskey, in a Picayune, Mississippi, nursing home in May 2016. Arrangements had been made before his death at the only local funeral home offering cremation, but the director refused the body after learning about their marriage.

"It was one of the worst days of (Zawadski's) life," and the funeral home was making it worse, Tiven said. There were no other cremation services available in the county.

Lambda Legal currently represents Zawadski in a breach-of-contract suit against the funeral home.

Anti-discrimination laws protect the mental health of LGBT individuals, said Mary Bonauto, civil rights project director at GLBTQ Legal Advocates & Defenders. Without them, gays and lesbians would risk censure at every new store or restaurant they tried.

"If every time you walk into a shop, you risk being intimidated, that's destructive. That's the kind of harm we want to end in this society," she said.

A ruling or a compromise

Although a Supreme Court case involving a Christian baker, gay couple and wedding cake is novel, opponents of religiously based service refusals say the case treads on familiar ground. They compare the Masterpiece Cakeshop debate to Newman v. Piggie Park, a case that pitted a religious barbecue restaurant owner against African-American customers in 1968.

"While justifying racial discrimination on the basis of religion might seem outlandish or offensive today, the unfortunate truth is that those sorts of arguments were once common," reads the brief from the NAACP Legal Defense and Educational Fund. "In order for this court to calibrate a careful balance between anti-discrimination principles and religious liberty, it should be especially mindful of how theology has previously been invoked to justify discrimination."

Longtime civil rights activist and Rep. John Lewis, D-Ga., said his support of Craig, Mullins and the entire LGBT community is a continuation of his civil rights work over the past six decades.

"I've fought too long and too hard to end discrimination based on race and color not to stand up against discrimination based on sexual orientation," he said during the ACLU's Oct. 30 press call.

Some faith groups and religious leaders take a similar view, asserting that accommodating opposition to same-sex marriage could easily lead to increased discrimination against minority faiths, as the Deseret News reported last week.

"Public accommodations laws like Colorado's generally promote religious liberty, by protecting individuals from discrimination on account of their religion," argues the brief joined by the General Synod of the United Church of Christ, the Baptist Joint Committee for Religious Liberty, the presiding bishop of the Episcopal Church, the Evangelical Lutheran Church in America and Chicago Theological Seminary.

Those who support accommodations for business owners like Phillips say that compromise is necessary in the wake of a major cultural shift like the legalization of same-sex marriage. They point to the Supreme Court's marriage ruling, which called for respect for all religious perspectives.

"As the court recognized in Obergefell, the problem is not the existence of a multiplicity of good faith views about marriage, but rather the enshrining of a single view into law which can be used to demean, stigmatize and exclude those who do not accept it," read the brief filed for the baker by Becket Law.

In other recent, high-profile religious freedom cases, compromise was reached. After the Supreme Court ruled in the 2014 Hobby Lobby case that closely held, for-profit corporations couldn't be forced to pay for contraception coverage if it violated owners' religious beliefs, employees were able to access birth control directly from their insurer.

"That was an odd case. There was this way out (of the conflict) where insurance companies could pay," Flanders said. "Here it's harder."

One potential compromise would involve creating an accommodation for businesses like Masterpiece Cakeshop under the assumption that support for same-sex marriage would continue to rise and that shops that won't serve LGBT couples wouldn't survive, Flanders added.

"You say, 'Look, the marketplace will sort this out.' Those who refuse to sell to gays and lesbians in modern-day America will not do very well," he said.

But those familiar with everyday acts of discrimination aimed at LGBT Americans say they're not content to wait.

"The fact that we have this one shared civic space where people come together without fear of being turned away is important to our whole democracy," Bonauto said.