Trump's DOJ Tells SCOTUS There's a Constitutional Right to Discriminate Against LGBTQ People

BY JAY KAPLAN

The Trump Administration's Justice Department, headed by Jeff Sessions keeps batting a thousand when it comes to LGBT rights. After rescinding federal guidelines protecting transgender students from discrimination regarding bathroom use at school, after recently submitting a brief in the federal court of appeals for the Second Circuit arguing that sex discrimination laws do not protect LGBT from discrimination, the Department filed a brief last week in the United States Supreme Court, arguing that businesses that are open to the public have a constitutional right to discriminate against LGBT people.

This brief was filed in the Masterpiece Cakeshop case, the case in which a Colorado bakery refused to serve a same-sex couple seeking a cake for their wedding reception. Lower courts had previously found that Masterpiece Cakeshop violated Colorado's non-discrimination law when it refused service to David Mullins and Charlie Craig. Masterpiece's owner, Jack Phillips has argued that he should be exempt from the civil rights laws because of his religious beliefs that marriage should be limited to same-sex couples.

Not only does the Justice Department argue that baking a cake for a same-sex couple "violates (Phillips') sincerely held religious beliefs," but also that baking a cake is a "form of expression" that is protected under the First Amendment. This prompted Louise Melling, deputy legal director of the National ACLU (which is representing David Mullins and Charlie Craig) to state:

"The Justice Department has already made its hostility to the rights of LGBT people and so many others crystal clear. But the brief was shocking, even for this administration. What the Trump Administration is advocating for is nothing short of a constitutional right to discriminate."

A constitutional right to discriminate against LGBT people..... Make no mistake, the biggest threat to LGBT rights today are arguments like those made by the Justice Department, that certain individuals and businesses are exempt from civil rights laws based on their religious beliefs that to be LGBT is wrong. We've already seen it here in Michigan. Aimee Stephens is fired from her job at a funeral home when she discloses to her employer that she is transgender.

Federal District Judge Sean Cox agrees with the owner that his religious belief about transgender people exempt him from having to comply with federal civil rights laws and justifies the discriminatory firing. (This case is now on appeal in the Sixth Circuit). The Michigan legislature passes and Governor Snyder signs a law that permits faith based foster care and adoption agencies that have paid contracts with the state of Michigan (to act on behalf of the State of Michigan), to refuse to work with certain families (including LGBT families) based on those agencies' religious beliefs. This threat is already here in Michigan, as well as throughout our nation.

As a nation, we decided a long time ago that businesses that are open to the public should be open to everyone on the same terms, and that includes customers that are LGBT. Nobody should be turned away from a business, denied service, fired from their job, or evicted from their home simply because of who they are.

The Masterpiece Cake Shop case is not a case about cakes. It's about people being turned away from a business simply because of who they are. Protecting people from discrimination is about treating others the way we want to be treated, and it is part of our constitution's promise of equal treatment under the law for everyone. A business that opens its doors to the public to provide a commercial service like selling a cake isn't endorsing any customer, including that customer's marriage. We all have different beliefs and providing services to customers on equal terms just means that a business is following the law.

And businesses that sell products to the general public aren't above the law just because there is a creative element to their work. Allowing businesses that offer custom products or creative services to break the law and turn away customers would mean that hairdressers could refuse to style hair for a bat mitzvah, printers could refuse services to people of color and more. It could mean a return to a time where commercial businesses engaged in blatant and rampant discrimination against people based on race, religion, gender, and more. Our constitution does not protect this kind of discrimination.

Freedom of religion is one of our most fundamental rights as Americans. It is strongly protected by the First Amendment. But that freedom does not give any of us the right to harm other people, to impose our beliefs on others, or to discriminate.

In the Masterpiece case, there was no discussion at all about any message on a cake. Refusing to bake a cake where the customer seeks to include a homophobic or racist message isn't the same as refusing service because the customer is straight or Christian or because of their race.

Bakeries are free to refuse to sell products with particular messages, as long as they don't do so on the basis of who is requesting the product. That's why it was legal for another Colorado bakery to refuse to decorate two cakes, one saying "Homosexuality is a detestable sin" and the other showing two grooms holding hands with a red X over them.

It's both disturbing and distressing that the Trump Administration does not understand this difference. In their brief to the highest court in our land, the final arbiter on constitutional issues, they have articulated a position that upends what our constitution is all about and threatens to gut essential civil rights protections. We put our trust in the United States Supreme court to reject the Trump Administration's dangerous and flawed legal arguments and to rule on the side of equal rights, just as the lower courts have.

Jay Kaplan is the staff attorney with the ACLU of Michigan LGBT Project. He can be reached at jkaplan@aclumich.org.
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