A young couple on a long winter drive across the Northern 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 mutters, “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 Tuesday could turn back the clock and enable bigoted business owners to selectively deny service.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, concerns cakeshop owner Jack Phillips’ refusal to provide a cake to a male couple for a party celebrating their marriage, explicitly citing their being homosexual as the reason.
Charlie Craig and David Mullins successfully sued Phillips 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 being required to create a cake for the couple amounts to forcing him to endorse a practice he considers immoral. His claim was rejected by lower courts.
As a lifelong small business advocate, I don't endorse Phillips' view and fear his argument would render public accommodation laws like Colorado's impotent.
The American Independent Business Alliance, which I co-direct, joined other business groups in a Supreme Court brief arguing against a right to discriminate. In addition to our belief that public accommodation laws are necessary to safeguard civil rights, we engaged because bigotry by any community-serving business harms other entrepreneurs.
Many potential customers simply will avoid shopping, dining and doing other business in towns where discrimination is known. The brief notes, “When consumers have reason to worry that some businesses lining Main Street may refuse to serve them, the entire business community suffers.”
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. In a 2015 case, a Michigan pediatrician refused to treat an infant solely because her parents were lesbians. 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 basis for discrimination could endanger the rights of millions. 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.
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. While bigots exist in every profession, AMIBA and our cohorts on the Supreme Court brief hope to make clear they are outliers among small business owners.
The intolerant baker and those who back him are fighting a battle many Americans assume already had been decided in favor of protecting vulnerable groups. But with racists and bigots newly emboldened (the Trump administration has sided with the baker), we must not be complacent. While Americans now must trust the justices to uphold Colorado’s public accommodations law, we also must realize no civil rights can be taken for granted today.