The U.S. Supreme Court decision involving Masterpiece Cakeshop in Colorado has generated much interest within legal circles and the business community at large. This case involved a shop owner who advised a gay couple he would not create a cake for their wedding, because of his religious opposition to same-sex marriages. The Colorado Civil Rights Commission determined the shop’s actions violated Colorado’s Anti-Discrimination Act, because it discriminated on the basis of sexual orientation. The state courts of Colorado affirmed the Commission’s ruling. The legal question before the U.S. Supreme Court was whether the Commission’s order violated the U.S. Constitution, by violating the shop owner’s freedom of speech and the free exercise of religion under the First Amendment.
Thus, the Court was tasked with balancing the authority of a state to protect the rights of a protected class, gay persons in this instance, with the rights of individuals to exercise their fundamental First Amendment rights to speech and to the exercise of religion. In its decision, however, the U.S. Supreme Court kicked the proverbial can down the road. Instead of addressing the substantive legal issues presented, it overturned the Colorado court’s decision on the basis that, in making its determination, the Commission failed to act as a neutral decision-maker and failed to provide fair consideration to the baker’s religious objections. The Supreme Court recognized that the legal question presented remained pending and business owners and consumers are left seeking further guidance from the courts.
To be clear, the Supreme Court was not being asked whether a public establishment could discriminate against a particular class of people – of course, the answer to that question is a resounding no! And the Supreme Court’s decision does not grant any establishment a license to discriminate against any particular group. There are public accommodation laws at the federal level that serve to protect persons from discrimination or segregation on the basis of race, color, religion and national origin, in enjoying goods, services, facilities and accommodation in places such as hotels, restaurants, movie theaters, stadiums, gas stations, etc. These public accommodation laws have been expanded by state legislatures, and at county and city levels, many of which additionally protect persons from discrimination on the basis of sex, pregnancy, age, disability, marital status and sexual orientation. Similarly, there are laws that protect persons from discrimination in employment, housing, and credit and financing practices, among others, as well as program or activities receiving federal financial assistance.
The question that remains, however, is to what extent does the First Amendment protect a business owner from having to provide a particular service, and particularly, when that service is one disproportionately or exclusively provided to a protected class of persons. For example, there is no question that a doctor may refuse to prescribe contraceptives, and the question of discrimination does not come into play, because the recipients of these services are not limited to a particular class.
However, when the persons requesting the service are limited to one class, as in the same-sex wedding case, it requires a determination as to whether refusing such service is unlawful discrimination against a particular protected class or the provider’s lawful exercise of his or her First Amendment rights. Thus, we are left to balance protecting classes of people from discrimination with respecting the First Amendment rights of business owners, and are left to question: May a restaurant refuse to host a wedding or reception for a multi-faith wedding? May a baker refuse to design a cake for Easter or for a Bar Mitzvah? May an endocrinologist refuse to provide hormone therapy to a person with gender identity disorder? May an infertility specialist refuse to provide in vitro fertilization to a single woman?
These questions remain unanswered by the U.S. Supreme Court and, as it advised, these questions will require further elaboration in the courts, and these disputes must be resolved with tolerance, respecting sincere religious beliefs and without subjecting those in search of goods and services in the open market to indignities.
Attorney Pablo S. Quesada is a founding partner at SMGQ Law in Coral Gables who focuses his practice on corporate, securities, real estate and tax law.