Thanks to the Masterpiece Cakeshop case, the conversation around religious liberty and LGBT rights in the United States has been focused mostly on wedding services in recent months: Should bakers be able to cite religion in order to deny wedding cakes to same-sex couples? Can florists refuse to arrange flowers? What about stationery shops?
But as a recently-decided Hawaii Supreme Court case should remind us, anti-LGBT groups don’t just want to make it legal to deny wedding services to LGBT people, they want to make it legal to discriminate based on sexual orientation and gender identity in virtually every area of public life.
As the Associated Press reported, the Hawaii Supreme Court last week rejected an appeal from Phyllis Young, the owner of Aloha Bed & Breakfast, who had argued that she should be able to turn away a lesbian couple because of their sexual orientation.
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The couple, Diane Cervelli and Taeko Buford, didn’t come to Hawaii to get married—or even as part of their honeymoon. Rather, as Lambda Legal notes, they had come to Honolulu to visit a friend and her new baby. This was a clear-cut case of a religious-based service refusal that had nothing to do with a wedding.
But the B&B owner was represented by Alliance Defending Freedom, the same group that represented the Masterpiece Cakeshop baker.
According to the AP report, Young may appeal the Hawaii Supreme Court’s decision—one of several religious-based service refusal cases that could reach the United States Supreme Court in the next few years.
What makes the Hawaii case stick out, Lambda Legal senior attorney Peter Renn told me, is that it had no specific tie to same-sex marriage—and yet the same group of LGBT opponents still backed it.
“The other cases that we’ve been talking about involving florists and cakes center around a wedding,” he said. “And anti-gay discrimination happens in a broad range of contexts, including outside wedding services. This case illustrates that point.”
Groups like Alliance Defending Freedom stand to benefit from advancing wedding-focused court cases, mainly because such cases seem to more successfully drive a wedge through public opinion.
On one hand, Public Religion Research Institute data shows that 60 percent of Americans oppose religious-based service refusals, including nearly half of those who oppose same-sex marriage.
But on other, a 2017 YouGov poll found that Americans were “torn” on the Masterpiece Cakeshop question: Even though a clear majority supported the Colorado anti-discrimination statute under which the baker was sued, 57 percent of respondents said they would take the baker’s side in the Supreme Court case.
In other words, a not-insubstantial number of Americans generally oppose denying service to an LGBT person based on religious belief—but would allow it if the service were wedding-related. That’s one reason why cases like Masterpiece or Arlene’s Flowers in Washington State seem to receive such special attention from anti-LGBT groups.
“They might prefer to have a case that deals with wedding-related services because it wrongly suggests that the exemption that the other side is seeking would be narrow but in fact we know it wouldn’t be narrow,” said Renn. “Giving a business a right to discriminate based on sexual orientation is in no way confined to wedding cakes and flowers for a wedding.”
For proof, one need only look south to Mississippi, where an extreme anti-LGBT law known as HB 1523 remains in effect, in part thanks to the Supreme Court’s January decision not to hear a challenge to it.
That law specifically enumerates a small handful of religious beliefs—namely that marriage is between a man and a woman and that gender can’t be changed—and then expressly protects discrimination based on those beliefs. HB 1523 doesn’t just apply to wedding-related services; rather, it can, as The Daily Beast’s Jay Michaelson noted, be cited by virtually anyone: doctors, therapists, landlords, employers, and so on.
The Mississippi law is supported by the same people behind the wedding-related court cases that seem to garner more public and national media attention. Alliance Defending Freedom, the same legal group behind the Masterpiece Cakeshop baker and the Hawaii B&B owner, “played a key role” in the drafting of HB 1523, as the Washington Post reported.
That law, more than anything, is proof that LGBT opponents won’t be content to stop at wedding-related service refusals if they start finding success in the courts, as Tim Teeman of The Daily Beast has reported.
“The slope is very slippery and there is really no limit to the exemptions the other side would seek if religion, in fact, gave one a trump card to violate civil rights laws,” said Renn.
But don’t expect broader religious-based refusal cases like the Hawaii B&B to be the first that LGBT opponents will try to use to carve out room for discrimination at the federal level.
One reason why Masterpiece Cakeshop and Arlene’s Flowers are so appealing, as Renn notes, is because it allows anti-LGBT groups to argue that cakes and flowers are not just services, but speech. In narrowly siding with the Christian baker in Masterpiece, the Supreme Court dodged a direct reckoning with that argument, but it remains one that LGBT opponents are eager to have.
“The other side might prefer to have the U.S. Supreme Court first review a case involving a freedom of speech defense that’s joined with religious defense,” said Renn, noting that the Hawaii B&B case wouldn’t fit that bill. “[With] the flower and cakes cases, the other side is arguing that their freedom of expression is being violated—and that’s obviously not an argument that one could credibly make when we’re talking about just providing transient accommodations to someone. There’s no expression involved there.”
The Hawaii B&B case might not be the most likely to get propelled to the U.S. Supreme Court, then, but it is a telling sign of things to come: If LGBT opponents secure a license to discriminate in the area of wedding services, they will have their foot in a door that they can then try to wedge wide open.
