Many conservatives and even some mainstream press outlets have been lauding Monday’s Supreme Court decision in Masterpiece Cakeshop as a victory for religious freedom. In reality, the decision was a punt that actually bodes well for the future of LGBTQ rights. More importantly, it is still totally illegal for a baker like Jack Phillips to refuse to sell wedding cakes to same-sex couples, which may come as a big surprise to Phillips.
Phillips and his attorney Kristen Waggoner from the hate group Alliance Defending Freedom have been on a little press tour Tuesday, including The Today Show and Fox & Friends. At each stop, Phillips has repeatedly said he’s looking forward to selling wedding cakes again.
“Hopefully we’ll look at what the court’s ruling is, make sure that we’re in compliance with that because we want to be good with that,” he told an incredulous Steve Doocy. “But I’m looking forward to getting back into the wedding business. That is one of the main things that I opened the shop for.”
But the reality is that nothing in the Supreme Court decision actually changed Colorado law. It’s still illegal for businesses to discriminate on the basis of sexual orientation. And despite a recent clash in the state legislature over maintaining funding for the Colorado Civil Rights Commission to continue investigating discrimination claims, it remains operational. In a statement responding to the decision, the Commission stated that it “will continue with its function.” That means that the second Phillips puts wedding cakes back on the menu in his shop, he’ll be required to sell them equally to all customers regardless of their sexual orientation — just as before.
The Masterpiece Cakeshop decision concluded that the Commission was biased against Phillips and reversed the ruling against him. In doing so, the Court did not remand the decision for further consideration, essentially denying any further avenues of justice to Charlie Craig and David Mullins, the couple Phillips refused to serve. According to James Esseks, who serves as director of the ACLU’s LGBT & HIV Project and represented the couple, “It’s over.” But that doesn’t mean the Court issued a license to discriminate.
“It gave the bakery a get-out-of-jail-free card that is good just this one time, and that is based only on what the court saw as misbehavior by the Commission,” Esseks told ThinkProgress. “The bakery doesn’t have a get-out-of-jail-free card going forward, which means it still has to abide by Colorado’s law barring businesses that are open to the public from discriminating against customers because of who they are.”
As part of Phillips and Waggoner’s press tour, they’ve tried to paint him as a victim of oppression. During the Fox & Friends interview Tuesday morning, Waggoner noted that Phillips lost 40 percent of his business and six of his ten employees when he had to stop selling wedding cakes. On Tuesday afternoon, they returned to Fox News, where Waggoner told Outnumbered Overtime host Harris Faulkner that Phillips’ conversation with Craig and Mullins ended “with them cussing him out, picketing the store, giving him the finger, then suing him,” adding that he’s endured death threats and other hostile threats as a result. None of that changes the fact that he broke the law by discriminating against them, and still would be if he resumed selling wedding cakes to different-sex couples only.
The post-Masterpiece victory tour may thus do a disservice to other business owners who think they can now discriminate against same-sex couples. “This is a big win for us,” Phillips said in that second Fox News interview, “for all creative professionals… It now gives us a ruling that says that we can go about creating our works — our art — without fear of punishment from the government.”
That’s simply not true. In 21 states and D.C. — including Colorado — the law still states that any public accommodation like a public business must serve people of all sexual orientations equally. Repeatedly telling a Fox News audience that wedding vendors are now free to discriminate might actually jeopardize the business owners who believe them. Of course, it could also just be a recruiting effort to find the Alliance Defending Freedom new clients to add to its roster of business owners challenging LGBTQ protections across the country.
It could also lead to increased discrimination in the other 29 states where same-sex couples would have no legal recourse. The Equality Act, a bill that would create LGBTQ nondiscrimination protections at the federal level, remains stalled in Congress.
For vendors like Phillips, however, nothing has changed. And if he discriminates again and the process starts all over — and if the Commission manages to avoid saying anything that offends Justice Kennedy’s sensibilities — he might not be so lucky the next time around.