We’ve Seen This Before: Masterpiece Arguments Echo Prior Non-Discrimination Fights

By Megan Clayton • November 27, 2017 • 1:06 pm

On December 5, the United States Supreme Court will hear oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that could have dramatic consequences for the movement to secure LGBTQ-inclusive non-discrimination protections nationwide.

At the heart of the case is one question: Do businesses have a right to discriminate against customers simply for being LGBTQ? Though anti-LGBTQ lawyers are attempting to set a precedent that freedom of religion somehow means freedom to discriminate, these arguments are nothing new.

Just as the country reacted with outrage at the discrimination inherent in these bills and court rulings, we must come together to reject the anti-LGBTQ arguments in the Masterpiece Cakeshop case. On December 5 and in the days leading up to the argument, we have that chance. Join us by speaking out in favor of a ruling that ensures businesses open to the public remain #OpenToAll.

And to fuel your fire, take a look at a summary of recent efforts to take away basic civil rights protections from LGBTQ Americans under the guise of “religious exemptions.”

Gov. Pence’s Hurtful Anti-LGBTQ Law in Indiana

In 2015 then-Governor (and now U.S. Vice President) Mike Pence of Indiana inspired widespread condemnation and boycotts for signing the so-called Religious Freedom Restoration Act. The law basically implied a “license to discriminate” if one cited their personal religious beliefs. After mounting pressure, an amendment was passed later that year making it slightly harder to discriminate, but more work remains. Now fair-minded Hoosiers are working to partly undo the damage by passing local nondiscrimination ordinances, with an eye on an eventual statewide law.

Arizona’s Aggressive Attempt to Discriminate Against LGBTQ People

Pence’s law may have been inspired by a similar bill that ultimately failed in Arizona after a similar outcry. After a nail-biting legislative session, during which many businesses condemned the legislation and the NFL threatened to pull the Super Bowl from the state, Governor Jan Brewer ultimately vetoed the discriminatory SB1062 in 2014. However, as with Indiana, Arizona still has no comprehensive statewide protections for LGBTQ residents.

Fate of Mississippi’s Worst Ever Anti-LGBTQ Law Hangs on Courts

As with Indiana, Arizona, and 27 other states, Mississippi has no explicit state-level protections for LGBTQ people. However, that wasn’t enough for Governor Phil Bryant and the Legislature, who passed the rampantly discriminatory HB 1523 in April of 2016. This legislation that allows individuals as well as businesses and organizations like hospitals and schools to legally cite their religious beliefs as an excuse to discriminate. In May the ACLU filed a lawsuit, and the Campaign for Southern Equality re-opened a lawsuit challenging Mississippi’s ban on same-sex marriage (HB 1523 even includes provisions allowing government agencies to refuse marriage licenses to same-sex couples). Unfortunately, the 5th Circuit Court of Appeals ruled that plaintiffs had no standing to challenge the anti-LGBTQ law, and in October the law took effect. Challenges to the law are surging through courtrooms now, with two cases requesting review by the U.S. Supreme Court.

A Fight for the Future of Georgia

In the 2015 legislative session, Georgia lawmaker considered a so-called “Religious Freedom Restoration Act,” which would make it easier for businesses or individuals to cite their religious beliefs as an excuse to discriminate. In April of 2016 Governor Nathan Deal vetoed the bill, citing Georgia’s “warm, friendly and loving people.” However, it was introduced again in 2017. Pro-LGBTQ advocate group Georgia Unites Against Discrimination is fighting back with the Fair Employment Practices Act, which would protect Georgia state employees from discrimination on the basis of sexual orientation and gender identity.


Meaning, Intent of Federal Religious Freedom Law Stretched to Allow Discrimination in Michigan

EEOC v. Harris Family Funeral Homes dates back to 2014, when Aimee Stephens claimed that her former employer, Harris Funeral Homes, violated Title VII of the Civil Rights Act by discriminating against her because of her gender identity. She filed a complaint with the EEOC, and the EEOC subsequently filed a federal lawsuit against the employer. In the 6th Circuit, positive case law has already found that Title VII prohibits discrimination based on gender identity. However, after losing a motion to dismiss, defendants in the case argued that the federal Religious Freedom Restoration Act protects the funeral home’s decision to fire Aimee Stephens, despite the fact that the funeral home is not affiliated with any religious entity. In an unprecedented and shameful ruling, a federal judge agreed with the defendants. This effort to seek a religious exemption from Title VII under the federal RFRA is being appealed now to the 6th Circuit Court of Appeals by the ACLU.

Trump Administration Attempts to Reopen Floodgates on Discrimination

In October U.S. Attorney General Jeff Sessions and the Department of Justice issued guidance that gives unprecedented leeway to federal agencies, employees, and even some businesses to cite individual religious belief as justification for discriminating against LGBTQ people and denying them services. The guidance amounts to a sweeping license to discriminate — a radical departure and sweeping reinterpretation that far exceeds the original modest intent of the Religious Freedom Restoration Act, which was passed to protect people from being discriminated against on the basis of their religion.

The Trump administration also revoked guidance to protect transgender students, and announced the DOJ will no longer protect transgender Americans from workplace discrimination under the Civil Rights Act of 1964. His effort to ban transgender Americans from serving openly in the armed forces was just slapped with a preliminary injunction.

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