Small Business Week: A Time to Recognize the Importance of LGBTQ Inclusion

By Shane Stahl • April 29, 2018 • 10:18 am

Every year since 1963, the President has issued a proclamation announcing National Small Business Week, highlighting the contributions and successes of America’s small business owners and entrepreneurs with the help of the Small Business Association. It’s important to recognize, since the small business community is the backbone of the American economy: More than half of Americans run or work for a small business, and small businesses are responsible for nearly two out of three jobs created every year.

Small Business Week: Reflecting on Masterpiece Cakeshop

In the movement to secure nondiscrimination protections for LGBTQ people nationwide, the voices of small business owners have been one of the strongest coalitions we have developed at Freedom For All Americans. Through our Small Businesses Against LGBTQ Discrimination coalition, hundreds of small businesses and business leaders have stood up publicly in favor of nondiscrimination protections.

To engage in Small Business Week and recognize these businesses who have taken a stand against discrimination, Freedom For All Americans will be highlighting many of our partners through story collections, a selection of in-depth profiles, op-eds from leaders, and more.

While it’s important to recognize this week, it is equally as important to focus on a Supreme Court case that could affect all businesses both large and small, depending on the court’s ruling, and which will make a definitive statement about the state of nondiscrimination protections in the country.

Masterpiece Cakeshop and Why Businesses Must Be #OpenToAll

In 2012, same-sex couple Charlie Craig and David Mullins visited Masterpiece Cakeshop in Lakewood, Colorado to inquire about buying a cake for their upcoming wedding. Before even discussing anything about the couple’s hopes for the cake, the baker Jack Phillips, told the couple he did not create wedding cakes for same-sex couples because of his religious beliefs, refusing them service.

Charlie and Dave filed a complaint with the Colorado Civil Rights Commission under the state’s public accommodations law, the Colorado Anti-Discrimination Act, which prohibits businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation. The resulting lawsuit, Craig v. Masterpiece Cakeshop, was decided in favor of the plaintiffs by the Colorado Office of Administrative Courts in 2013, with a final ruling from the Civil Rights Commission in 2014 stating that Masterpiece violated the state’s anti-discrimination law.

With the help of the notoriously anti-LGBTQ group Alliance Defending Freedom, Phillips appealed the ruling to the Colorado Court of Appeals. The ACLU represented Craig and Mullins during these proceedings; once again, the appeals court found in favor of the couple, asserting that in Phillips’ business, creating cakes was part of the expected conduct, not an expression of free speech nor free exercise of religion.

“Small business leaders know that being open to the public means being open to everyone. Inclusion and diversity are critical to a thriving economy and dynamic workforce. Small business leaders across the country affirm the need for comprehensive nondiscrimination that prohibits unequal treatment against LGBTQ people and oppose all efforts to undermine or exempt businesses from the inclusive policies that benefit our businesses and our communities.” – Small Businesses Against LGBTQ Discrimination Pledge

When the Colorado Supreme Court refused to hear another appeal from Phillips and ADF, they petitioned the U.S. Supreme Court to hear the case; on June 26, 2017, the Court granted review, and on December 5, oral arguments were heard. A decision is now expected by the end of June.

At stake is the ability of LGBTQ people to be protected from discrimination in places of public accommodation. Currently, 18 states and just over 250 cities prohibit such discrimination in state or municipal law. Nondiscrimination laws across the country could be in jeopardy – not just for LGBTQ people, but anybody. A ruling in favor of Masterpiece Cakeshop grant businesses the ability to claim a religious exemption in order to refuse service to any group.

In response to the case, over 75 organizations came together to create the #OpenToAll campaign, which promotes the message that businesses open to the public must be open to all people. The campaign has sought to educate people about the Masterpiece case, and Freedom For All Americans is proud to have been a contributor — including through a video for the campaign featuring a voiceover from Emmy-winner Montel Williams — which you can view here.  

Freedom For All Americans also helped shepherd an amicus brief submitted to the Court on behalf of over 61,000 small business owners across the country. Our partners in this effort included Main Street Alliance, the American Independent Business Alliance, the San Francisco Chamber of Commerce, and the Seattle Metropolitan Chamber of Commerce. Furthermore, we submitted a municipal brief featuring over 70 individual mayors and the U.S. Conference of Mayors, representing 1,400 cities with populations over 30,000; partners in the latter effort included the county of Santa Clara, the City of New York, and the City of Los Angeles.

Small Businesses Agree: Discrimination is Bad for the Bottom Line

Small businesses across the country have voiced their opinions on discrimination against LGBTQ people, and a clear majority agree that it hurts not only an individual business, but the business community and economy in their cities and towns.

A poll of small businesses was taken in 2017 by the National Small Business Majority, specifically geared toward the issue of LGBTQ discrimination. In their final findings, the group found the following:

  • 68% of small businesses are in favor of a federal law that would prevent discrimination against LGBTQ people in places of public accommodation
  • 65% of small business owners believe that businesses should not be able to cite their religious beliefs as a reason for denying goods or services to an LGBTQ person.
  • 59% of small business owners believe that laws permitting discrimination against LGBTQ people are bad for business.
  • 55% of small businesses believe that business owners should not be able to claim an exemption based on artistic expression when it comes to goods and services available to LGBTQ people.
  • A further 55% of small business owners believe that laws preventing discrimination in public accommodations improve their business’ bottom line.

The numbers don’t lie: Small business owners strongly believe that laws should be in place to protect LGBTQ people in public accommodations, and that no one should be turned away from a place of business simply for being who they are or who they love.

Dismantling the Opposition’s Arguments

Often, defenders of Masterpiece Cakeshop assert that Colorado’s nondiscrimination law forces the baker to violate his religious beliefs. The truth is that freedom of religion is one of the paramount rights in our Constitution – it is protected, and no one is trying to change that. However, that commitment to faith cannot and should not be used to discriminate against LGBTQ people. This argument has been attempted before; in 1968 Maurice Bessinger, the owner of the Piggie Park restaurant in Columbia, South Carolina, refused to serve black people by claiming his religious beliefs prevented him from doing so.

Eventually, a lawsuit was filed by John Mungin, a black Baptist minister, who claimed he was threatened with physical violence and told to leave by Bessinger. A lower court found in favor of Mungin, based on the recently passed Civil Rights Act of 1964, which prevented discrimination against people based on race and color.

The #OpenToAll coalition released a video on how the Piggie Park case is connected to Masterpiece. Take a look:

The reality is that faith leaders and communities have been some of the most vocal leaders in the nondiscrimination movement. In the Masterpiece case, FFAA worked with our partners at the Religious Institute and the National LGBTQ Task force on submitting a brief featuring support from over 1,300 faith leaders representing over 500,000 congregation members.

At the heart of this case is the idea of equal treatment – and the truth of the matter is that no one is forcing any small business owner to sell anything to anyone. However, if a business decides to open its doors and sell a product, they must sell the product to every customer, regardless of sexual orientation or gender identity or race or ethnicity or gender. For example, Masterpiece Cakeshop doesn’t have to sell wedding cakes at all – but if they choose to sell wedding cakes, then they cannot pick and choose the customer and refuse to sell to same-sex couples.

Justice Sotomayor underlined this firmly during the oral argument. She said: “It’s not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.”

Small Business Week: Reflecting on Masterpiece Cakeshop

Opponents of LGBTQ equal treatment are also trying to force the question of “artistic expression,” saying that Masterpiece Cakeshop and others who want to deny service to LGBTQ people must be able to do so because the sale of their product is a form of “expression. This is a bold assertion, especially after looking at what ADF qualifies as “speech” or “not speech.”

Justice Elena Kagan tried to discern where ADF’s line was during the oral argument, and the conclusion was indecipherable. “I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does he come in?” she asked with regard to whether that product entails protected speech, after a similar question about a chef who cooks a wonderful, beautiful dinner. “Your Honor, the tailor is not engaged in speech, nor is the chef engaged in speech, but again, this Court…” ADF’s counsel answered. “Well, why – woah,” Justice Kagan replied. “The baker is engaged in speech, but the chef is not engaged in speech?”

Small Business Week: Reflecting on Masterpiece Cakeshop

No matter how artistic or beautiful the cake may be – or how artistic any product may be – when a business chooses to sell a product, they must sell to all customers. Charlie, plaintiff in the case, explained their viewpoint with regard to the “artistic expression” argument, saying, “I don’t feel like we asked for a piece of art, or for him to make a statement, we simply asked him for a cake, and he denied that to us simply because of who we are.”

This is what an overwhelming majority of small businesses understand, and it’s why we’re elevating their voices this week during National Small Business Week. No one, including LGBTQ people, should face discrimination because of who they are or who they love.

Further Reading for National Small Business Week

All week for Small Business Week, Freedom for All Americans is sharing stories and information about the business community’s strong support for LGBTQ nondiscrimination – and opposition to shameful exemptions. Check back throughout the week for more!

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