BY CHRIS JOHNSON, WASHINGTON BLADE
A plethora of cases related to LGBT rights are awaiting the Supreme Court after its summer recess at the end of this month, which could lead to the most monumental term for justices since the landmark 2015 ruling in favor of marriage equality nationwide.
The Supreme Court has already agreed to hear and accepted briefs in the Masterpiece Bakeshop case, which was filed by a Colorado baker asserting a First Amendment right to refuse to make wedding cakes for same-sex couples despite a state law prohibiting anti-LGBT discrimination. But justices could also take up cases determining whether current federal civil rights law affords lesbian, gay and bisexual people workplace non-discrimination protections and transgender kids access to school restrooms consistent with their gender identity.
James Esseks, director of the American Civil Liberties Union LGBT and HIV project, said the upcoming term for the Supreme Court is “potentially momentous” for LGBT rights — and civil rights in general — based on the Masterpiece Cakeshop case for which his organization is defending Colorado’s non-discrimination law.
“You’ve got the Masterpiece Cakeshop case, which is about whether the court’s going to recognize a constitutional right to discriminate based on people’s religion or people’s political beliefs, and if they do, that overrides civil rights law, and not just for LGBT people, but for everybody,” Esseks said. “And that’s something I think every single person in the country should be concerned about because everybody’s rights are at risk here.”
If the court takes up other LGBT cases in addition to the Masterpiece Cakeshop case, Esseks said the upcoming term “will be a defining moment for LGBT rights whether our side wins the cases or loses them.”
Front-and-center among the LGBT cases, simply by virtue of the Supreme Court already agreeing to review the lawsuit, is the Masterpiece Cakeshop case. It could also have significant impact if justices deliver a ruling mandating exemption for state and local non-discrimination laws, more so if that decision isn’t contained to the baking of wedding cakes.
Supporters of Jack Phillips, who refused to bake a wedding cake for a same-sex couple, already filed briefs in the case earlier this month. Representing Charlie Craig and David Mullins, the same-sex couple that sought the wedding cake, and Colorado — and that successfully sued in Colorado state courts after Phillips denied them service — is the ACLU.
Esseks said the issue presented to justices “isn’t about a cake” or business artistry but whether the court will find the baker has a constitutional right to discriminate under the First Amendment.
“It’ll sell the cake to lots of other people, but it won’t sell it to a same-sex couple, and that’s the paradigm of discrimination: No cakes for gays,” Esseks said. “What the store wants to be able to do is put up a sign over the display case for wedding cakes that says, ‘Wedding cakes for heterosexuals only.’ And just think about what the world looks like if a business can put up that sign. It can put up a lot of other signs. They can say no clothing for Muslims, they can say no haircuts for Latinos, you can go down the list.”
The Supreme Court already ruled in the 1990 decision of Employment Division v. Smith that neutral laws of general applicability, including anti-discrimination laws, are subject to rational basis review even when they incidentally burden religious beliefs. That precedent will likely hamper Masterpiece Cakeshop’s claims of being able to deny wedding cakes to same-sex couples under freedom of religion.
But supporters of Masterpiece Cakeshop are also framing the lawsuit as an attempt to protect freedom of expression on the basis that the preparation of a wedding cake is an inherently expressive act, unlike the provision of other goods, and protected under the First Amendment.
Katie Eyer, an anti-discrimination law scholar at Rutgers Law School, said the outcome of the case is hard to predict largely based on the freedom of speech claims made by Masterpiece Cakeshop.
“The speech side of the case is honestly more complicated,” Eyer said. “If this were 20, 30 years ago, certainly 30 years ago, I would tell you the Supreme Court does not treat discrimination as constitutionally protected expression. That has been eroded over the years as the court has moved away from the race cases, when this issue was originally raised. It has shown more and more willingness to entertain those types of defenses to anti-discrimination law claims.”
Eyer pointed out the Colorado Court of Appeals, which ruled against Masterpiece Cakeshop, determined the outcome could have been different if the baker was required to write a certain message on the wedding cake — something the U.S. Supreme Court may consider in evaluating the baker’s First Amendment claims.
Although oral arguments in the case aren’t yet scheduled, Esseks said the court has said they’re likely to take place within two weeks after Thanksgiving. The consensus among legal experts is the court will hand down a decision at the end of June 2018, when the term ends and the court tends to issue rulings in its high-profile cases.
In addition to the Masterpiece Cakeshop case, numerous petitions are before the court that would enable justices to issue rulings either dramatically expanding or restricting LGBT rights. It takes a vote of at least four justices to grant a writ of certiorari, or agree to hear a case.
Among them is the petition filed by Barronelle Stutzman of Arlene’s Flowers in Washington State, who like Masterpiece Cakeshop is seeking a First Amendment right to refuse services for same-sex weddings, but in her case floral arrangements. The Washington Supreme Court upheld the state’s non-discrimination law against her claims, but she filed a petition with the U.S. Supreme Court seeking review.
Eyer, however, said the likely outcome of that petition is the Supreme Court will place it on hold until it finishes consideration of the Masterpiece Cakeshop case, then take action.
“Often what the court will do in that type of circumstance is not grant and consolidate, but hold it until the initial case having implications is decided, and if it does indeed have implications, grant and remand and further consideration,” Eyer said. “I expect they probably won’t rule on the petition until the Cakeshop case is decided, and then whether or not they’ll send it back will depend on whether or not the Cakeshop case has new relevant doctrine, which it’s very likely to given the controversy and the circumstances.”
Another LGBT-related petition before the Supreme Court was filed by Kenosha School District in Wisconsin, which is seeking a nationwide ruling on whether Title IX of the Education Amendment of 1972 requires schools to allow transgender students to use the restroom consistent with their gender identity. The school district sought to bar high school student Ash Whitaker from the boy’s room, but the U.S. Seventh Circuit Court of Appeals ruled Title IX requires the school to change its policy.
Last year, the Supreme Court agreed to hear a similar case in which Gloucester County Schools refused to allow transgender high school student Gavin Grimm to use the school restroom consistent with his gender identity. But the Supreme Court changed course and nixed consideration of the case after the Trump administration rescinded guidance to schools assuring transgender kids access to the restroom of their choice. The remanded case is once again before trial court, which is determining the issue is moot now that Grimm has graduated.
Additionally, the LGBT group Lambda Legal has filed a petition before the Supreme Court seeking a determination that sexual-orientation discrimination amounts to sex discrimination, and therefore is unlawful in the workplace under Title VII of the Civil Rights Act of 1964. The plaintiff in the case is Jameka Evans, a security guard who claims she was targeted for harassment and effectively terminated from her job at Georgia Regional Hospital for being a lesbian.
The issue may be ripe for review because of a split among federal appeals courts. The U.S. Eleventh Circuit Court of Appeals ruled against finding employment protections for Evans under Title VII in contrast to a ruling earlier this year from the U.S. Seventh Circuit Court of Appeals determining anti-gay discrimination is a form of sex discrimination.
Jocelyn Samuels, executive director of the Williams Institute at the University of California, Los Angeles, said the circuit split makes the Supreme Court more likely to hear the gay employment case, but that won’t necessarily be the outcome.
“The Second Circuit is also hearing the case en banc on the very same question, so there is a lot of development in the lower courts on addressing this issue,” Samuels said. “I think it’s uncertain whether the Supreme Court would weigh in now or would opt to see how more cases at the district and circuit level come out.”
As with the marriage cases and so many other cases before the Supreme Court, the outcome of the LGBT-related lawsuits will likely come down to U.S. Associate Justice Anthony Kennedy, who’s considered the swing vote on the bench and has a reputation for coming down in favor of gay rights.
With respect to the Masterpiece Cakeshop case, Eyer said predicting the way Kennedy — who in addition to favoring LGBT rights, also has a reputation for giving deference to free speech — will come down is difficult.
“Part of what makes this a real wild card is Justice Kennedy, no doubt the justice in the middle of this case, has been steadfastly a defender of LGBT rights in the equal protection context, but also signed on to prior decisions granting exemptions to organizations under the First Amendment from gay-protective state anti-discrimination laws,” Eyer said.
Eyer afforded the same amount of deference to Kennedy in assessing the outcome of the gay employment and transgender bathroom cases should the Supreme Court decide to accept those petitions.
“The constitutional law context may differ from the statutory context in certain respects,” Eyer said. “He did vote to grant a cert of the stay in the G.G. case last year, which is certainly not dispositive, but it’s not helpful from the perspective of the plaintiff. There are lots of good reasons to think it would came in favor of plaintiffs in those cases, but we have a wild card of just not knowing specifically where Justice Kennedy is likely to go in these statutory cases.”
The Trump administration under U.S. Attorney General Jeff Sessions has already weighed in on the Masterpiece Cakeshop case before the Supreme Court, siding with the Colorado baker in a friend-of-the-court brief. The Justice Department has also filed a brief in the Second Circuit against lesbian, gay and bisexual protections under Title VII, which likely means the administration will intervene if the Supreme Court takes up the Evans case.
Samuels said the influence the Trump administration will have is “hard to know,” but the U.S. solicitor general, who’s charged with representing the U.S. government before the Supreme Court, will be presenting an untenable position.
“I would say, in my own personal judgment, the fact that this Justice Department is moving away from positions supported by the prior administration and, in particular, that the fact in the Second Circuit, the position taken by the Justice Department is in direct conflict with the position already taken by the EEOC, I think, limits the persuasiveness of the Justice Department’s filing, certainly in the Second Circuit, and I think also in the Masterpiece Cakeshop case,” Samuels said.
Percolating through the lower courts as the Supreme Court weighs these cases is litigation challenging President Trump’s ban on transgender people in the U.S. armed forces. The consensus among legal experts is these high-profile cases are unlikely to reach the Supreme Court by the end of its term, unless justices agree to accept an interlocutory appeal if lower courts issue — or deny — a preliminary injunction against the ban.
The LGBT legal groups representing transgender plaintiffs have already made these requests and the Justice Department has a deadline of Friday to respond to at least one of them before a trial court in D.C.
Eyer said the Supreme Court hearing these cases this term is “reasonably unlikely, but not impossible,” although if justices were to accept the litigation, the outcome would be unclear because of limited doctrine on transgender rights compared to sexual-orientation cases.
“I would say one thing we saw most often on challenges to ‘Don’t Ask, Don’t Tell’ and prior bans on gays and lesbians in the military was courts’ desire to defer to the military,” Eyer said. “I think that that factor’s really weakened here based on the fact that this doesn’t seem have been driven by the military, and indeed, the military seems to have reached the opposite conclusion, but how exactly it will play into litigation remains to be seen.”