BY CHRIS JOHNSON, WASHINGTON BLADE
As the U.S. Supreme Court weighs a challenge to Colorado’s non-discrimination law filed by a Christian baker who refuses to make wedding cakes for same-sex couples, House Democrats gathered outside the U.S. Capitol on Wednesday to promote a bicameral friend-of-the-court brief against the anti-gay baker.
Rep. Sean Patrick Maloney (D-N.Y.), who’s gay and a co-chair of the LGBT Equality Caucus, said at the news conference the refusal of service the Colorado baker proposes is akin to the kind of discrimination outlawed in other civil rights laws.
“If you are selling pizza, if you are renting hotels rooms, you do not get to say you’re not going to get served because you are African-American, or because you are Jewish, or because you are a woman,” Maloney said. “And it is not an answer to say that it is expressive conduct, that it is speech. It is not an answer to say that is a sincerely held religious belief if you are engaged in commercial activity. That’s simple.”
Rep. Mark Takano (D-Calif.), who’s also gay and a co-chair of the LGBT Equality Caucus, said a ruling in favor of Masterpiece Cakeshop would be the first step in a slippery slope toward more discrimination.
“This amicus brief that were filing today is not about merely affirming one couple’s right to buy cake,” Takano said. “What it seems to affirm is every person’s right to be treated with dignity and respect in America. A court ruling in favor of the cakeshop would unleash a flood of discrimination from those who want to insult and exclude any group of vulnerable people.”
Also speaking at the news conference was House Democratic Whip Steny Hoyer (D-Md.), who said a ruling for the baker would restore America to the dark days of discrimination.
“We’re better than exclusion, we’re better than hate, we’re better than prejudice,” Hoyer said. “We respect each and every one of fellow citizens. Let us pray that the Supreme Court redeems once again the promise of America.”
The Supreme Court agreed to hear the case as a result of a petition filed by Jack Phillips, the owner of Masterpiece Cakeshop who refused to make a wedding cake in 2012 for Charlie Craig and David Mullins, a Colorado couple. Bucking the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation in public accommodations, Phillips asserts the baking of wedding cakes is inherently an act of expression protected under the First Amendment.
The American Civil Liberties Union sued on behalf of Craig and Mullins. An administrative judge ruled in favor of the same-sex couple — a decision the Colorado Court of Appeals upheld in 2015. Although the Colorado Supreme Court declined to review these decisions, the U.S. Supreme Court nonetheless agreed to take the case this year.
The 37-page brief — signed by 175 House members and 36 U.S. senators — makes the case that members of Congress are well-positioned to advise the court on the Masterpiece Cakeshop case because the ruling could impact federal civil rights laws.
“The exemption petitioners seek — allowing discrimination by businesses that claim to engage in expressive conduct — is unworkable,” the brief says. “If Mr. Phillips chooses to provide goods or services to the public, then public accommodations laws demand he do so without discriminating against certain historically marginalized classes. Though Mr. Phillips may abide by certain tenets of his own faith, those tenets cannot be ‘superimposed on the statutory schemes which are binding on others in that activity.'”
The lead House member on the brief was Maloney and the lead U.S. senator was Tammy Baldwin (D-Wis.), the only out lesbian in Congress. A total of 211 congressional Democrats signed the brief — a number that dwarfs the 86 congressional Republicans who signed the brief led by Vicky Hartzler (R-Mo.) in favor of the Colorado baker.
Also present at the news conference was House Minority Leader Nancy Pelosi (D-Calif.), who said the brief takes a stand against anti-LGBT discrimination, but is also much broader.
“The Masterpiece Cakeshop case touches the lives, of course, of LGBT people but it also touches the lives of all Americans,” Pelosi said. “The case is about the fundamental right for all groups to be free from discrimination. With this brief, we are fighting that our nation lives up to its ideals of equality and justice for all.”
Also speaking at the news conference was Rep. Dan Kildee (D-Mich.); Rep. Joseph Kennedy III (D-Mass.), chair of the Transgender Equality Task Force; and Rep. Raja Krishnamoorthi (D-Ill.).
Krishnamoorthi, a Hindu and the first Indian-American to enter Congress, said he stands in solidarity with LGBT people as a religious, ethnic and racial minority.
“The promise of the United States is that it doesn’t matter where you came from, how you dress, how you pray, whom you love or how many letters there are in your name,” Krishnamoorthi said. “I have 18 in mine. All that matters is that you’re an American, and all Americans deserve equal protection under the law and all must have it.”
Joining lawmakers at the news conference in promoting the brief were Sarah Warbelow, legal director for the Human Rights Campaign; Ian Thompson, legislative director for the American Civil Liberties Union; and Harper Jean Tobin, policy director for the National Center for Transgender Equality.
Tobin compared the discrimination Craig and Mullins faced at Masterpiece Cakeshop to the kind of discrimination she said transgender people face everyday.
“This is the kind of discrimination that our state and federal civil rights laws are meant to protect Americans from in their daily life,” Tobin said. “The Supreme Court in this case is being asked to issue a license to discriminate, to turn our cherished civil rights laws into something more like civil rights suggestions.”
Under questioning from reporters, Maloney, who married his same-sex spouse in 2014 in New York, became visibly angry the Supreme Court would even entertain the idea a bakery would have a First Amendment right to refuse service to same-sex couples.
“The court would have not taken this case if it was a Jewish couple guaranteed,” Maloney said. “The court would’nt be hearing this case if it was a case of race-based discrimination dressed up as religion. The only reason is that people believe it’s still acceptable at some level, in some way to discriminate against LGBT people. The legal principle is exactly the same.”
A total of 35 friend-of-the-court briefs were filed before the Supreme Court this week in favor of the Colorado law and the same-sex couple.
Another brief, signed by nearly 1,300 clergy members, asserts religious views “do not provide a license to disregard neutral civil rights laws.” The Human Rights Campaign filed a “chefs for equality” brief signed by more than 240 chefs, bakers and restaurateurs opposing a decision against the same-sex couple.
Oral arguments in the case are set for Dec. 5.