Freedom of speech and religion is not a licence to discriminate

By Ria Tabacco Mar

Ria Tabacco Mar is a senior staff attorney at the American Civil Liberties Union’s LGBT & HIV Project. In 2016 she was named one of the “Best LGBT Lawyers Under 40” by the National LGBT Bar Association.

As the United Kingdom debates whether a bakery may lawfully refuse to sell a cake with a certain inscription, a case involving another bakery and another high court offers an important reminder of why laws against discrimination matter.

In America, the Supreme Court is currently considering the case of Dave Mullins and Charlie Craig, who were turned away by Masterpiece Cakeshop because they are a same-sex couple. The bakery refused to sell Dave and Charlie any cake for their wedding reception. Lower courts found that what happened to Dave and Charlie was sexual-orientation discrimination under state law and that the bakery’s discrimination wasn’t excused by constitutional protections for the freedom of speech or religion.

The state’s Anti-Discrimination Act isn’t the All-Cakes Act. No bakery has to sell any particular product

Importantly, the state’s Anti-Discrimination Act isn’t the All-Cakes Act. No bakery has to sell any particular product, including wedding cakes. That means the law at issue in Masterpiece Cakeshop wouldn’t require Ashers Bakery in Northern Ireland to sell a cake with the inscription, “Support Gay Marriage.”

But if a bakery chooses to sell wedding cakes, as Masterpiece Cakeshop does, the state may prohibit it from refusing to sell that same product to customers because of their race, religion, or sexual orientation. Simply selling a product to customers on the same terms as everyone else isn’t endorsing the customers or their beliefs.

The equal-service rule at issue in Masterpiece Cakeshop dates to the late 1800s and first aimed at ensuring that recently emancipated slaves had the freedom to participate in the marketplace. Over time, it has expanded to protect other historically marginalised groups, including people with disabilities and LGBT people.

The equal-service rule dates to 1885, to ensure that recently emancipated slaves could participate in the market

While the anti-discrimination law has been updated, the equality principle remains the same. It’s the reason most of us can go about our daily lives without incident and without fear of being turned away when we walk into shops and restaurants. Nevertheless, the bakery argues that the freedoms of religion and speech guarantee it the right to discriminate in violation of this long-standing principle.

In essence, the bakery seeks a constitutional right to hang a sign in its storefront proclaiming: “Wedding Cakes for Heterosexuals Only”. That would be profoundly humiliating and stigmatising. America knows all too well the harm of telling members of a minority group that their dollar isn’t good enough.

The question before America’s Supreme Court isn’t whether wedding cakes are art or expression protected by the freedom of speech. It is whether a state can prevent the harms of discrimination against people because of who they are, including when they seek to buy artistic or expressive products. Under the US Constitution, it can.

In essence, the bakery seeks a right to hang a sign proclaiming: “Wedding Cakes for Heterosexuals Only”

America’s Supreme Court, like Britain’s Supreme Court, is expected to issue a decision this summer. In past cases, it has repeatedly upheld the government’s ability to protect all of us from the harms of discrimination. It should do so again today. There is nothing about discrimination based on sexual orientation that requires—or allows—a different result.