Marriage Equality, Public Accommodations Laws, and Religious Exercise

Abstract

Opposition to same-sex marriage in the United States is frequently based on the religious belief that marriage should be reserved for a man and a woman. With most of the attention focused on wedding vendors, the clash between religious liberty and marriage equality has largely manifested itself in efforts by business owners, such as photographers, florists, caterers, and bakers, to deny their services to same-sex couples celebrating their marriages. Citing state antidiscrimination laws, the couples demand the owners treat them as they do their other customers. Owners of public accommodations (privately owned business open to the public) who object to facilitating the weddings of same-sex couples do so typically by asserting their personal religious beliefs as defenses when charged with violating such laws; they argue that they would view their participation (albeit indirect) in wedding ceremonies as endorsing same-sex marriage. As the lawsuits against them began to proliferate, the business owners asked the courts to shield them from liability for violating the laws prohibiting discrimination because of sexual orientation in places of public accommodation. They cited their First Amendment right to the free exercise of their religion and their right not to be compelled to speak, that is, to express a positive message about same-sex marriage. With conflicts between same-sex couples and owners of business establishments arising in a number of states, the focus of the nation’s attention was on a New Mexico photographer, a Washington State florist, and a Colorado baker, each of whom sought an exemption from their state’s antidiscrimination law to enable them to exercise their religious tenets against marriage equality. In these cases, the state human rights commissions and the state appellate courts ruled that the antidiscrimination laws outweighed the rights of the business owners to exercise their religious beliefs against marriage equality by refusing to play a role, no matter how limited, in a same-sex marriage ceremony. In June 2018, in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, the U.S. Supreme Court affirmed the state’s antidiscrimination law that guaranteed equal treatment for same-sex couples in places of public accommodations but reversed the Commission’s ruling against the Colorado baker. In a narrow decision, the Court held that the Commission infringed on the baker’s First Amendment right to free exercise by uttering comments that, in the Court’s view, demonstrated hostility to his sincerely held religious beliefs. The ruling affirmed that society has a strong interest in protecting gay men and lesbians from harm as they engage in the marketplace as well as in respecting sincerely held religious beliefs.