In recent weeks, a lesbian couple in New York City reported that they were kicked out of an Uber taxi after the driver became disgusted when they kissed (a “peck” as they described it); a hardware store owner in Tennessee who’d put a “No Gays Allowed” sign in his shop window a few years ago was back talking about a “ray of sunshine” in America for those who want to discriminate against LGBTQ people; and the U.S. Supreme Court refused to stop the execution of a South Dakota man likely sentenced to death because he is gay.
These actions and expressions are unrelated, and each represents the kind of injustice that LGBTQ people have experienced for decades. But what they have in common is that each one may not have happened if the Supreme Court hadn’t ruled for the baker who turned away a gay couple in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission earlier this month.
The 7-2 ruling in that highly-awaited decision was very narrow, journalists, legal analysts and some LGBTQ activists reminded us ― even a “step in the right direction,” as the Washington Post editorial board rather naively proclaimed. The court ruled for this Colorado baker in this case because his religious beliefs were, in the court’s view, not treated neutrally by the Colorado Civil Rights Commission when it determined he’d violated state law by refusing to sell a wedding cake to a gay couple. No civil rights laws protecting LGBTQ people in public accommodations in Colorado or elsewhere were ruled unconstitutional by the court.
But we do ourselves a major disservice ― and succumb to victory blindness ― when we neither grasp the magnitude of a ruling that sends a strong message of support to enemies of queer equality nor acknowledge that the Supreme Court appears to treat LGBTQ people differently than other minorities.
“Despite the narrowness of a ruling like this, it’s a win, it’s points on the board,” transgender activist Allyson Robinson rightly noted in a discussion on my radio program about how those opposed to LGBTQ equality took the decision as a victory and reveled in headlines describing the Supreme Court as siding with the baker.
“I’m a mom,” she continued. “I have four teenagers, three of whom identify as queer in some way. And I can tell you that the narrowness of this decision is completely lost on queer kids, who aren’t listening to people like us and our nuanced and in-depth kind of analysis.”
Robinson further explained the effect on young people seeing those headlines and hearing that anti-LGBTQ spin.
“They’re seeing tweets,” she said. “And seeing that message come up over and over has a very real impact on how they see themselves, how they see their futures. We can console ourselves with the fact that it’s a narrow ruling all day long and completely miss the impact that it’s having on that next generation as they’re trying to envision what it means to be queer in America.”
And that impact is devastating. The Supreme Court didn’t resolve the dispute by clearly affirming that LGBTQ people are protected in the Constitution from discrimination, even if that discrimination is based on religious beliefs. Justice Anthony Kennedy went right up to the line, writing for the majority that the dignity of gay people “must be given great weight and respect by the courts” and that “Colorado law can protect gay persons ... in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
But that fell short of deeming such discrimination unconstitutional. It left the justices to decide on another day whether such laws inhibit religious freedom or not ― a day in the perhaps not-too-distant future when Kennedy may no longer be on the court and President Donald Trump will have appointed another justice as hostile to LGBTQ rights as Neil Gorsuch.
In the meantime, people like the Uber driver and the hardware store owner, Jeff Amyx, will feel emboldened to discriminate. That bigotry will continue to play out hundreds, perhaps thousands, of times rather than being stopped in its tracks ― at least in a legal sense ― if the court had ruled clearly and definitively. Amyx, in fact, told a local TV news station that the ruling was a “great win” that brought “happy days for Christians all over America.”
As Lambda Legal CEO Rachel Tiven noted of the court ruling in HuffPost, “the majority’s musings about potential exemptions invite both more discrimination and more lawsuits crafted to undermine marriage equality and civil rights protections more generally.”
More than that, the decision gave off a real sense that the Supreme Court doesn’t view LGBTQ people the way it views other marginalized groups. In his opinion, Kennedy pointed to what he saw as dismissive hostility to the baker’s religious beliefs in the comments of one civil rights commissioner who said, “If a businessman wants to do business in the state and he’s got an issue with the law’s impacting his personal belief system, he needs to look at being able to compromise.” Kennedy highlighted another commissioner who said religion has been used as an excuse for much discrimination and brutality throughout history, from slavery to the Holocaust. That commissioner said, “It is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”
It’s hard to believe that if this baker had discriminated against a heterosexual African-American couple based on a religious belief in white superiority or turned away a heterosexual Jewish couple because he believed they were going to hell, the Supreme Court would have even agreed to hear an appeal of a lower court’s ruling in the couple’s favor ― much less rule for the baker because a commissioner had noted religion has been used to justify discrimination throughout history.
Just weeks after the Masterpiece Cakeshop decision, we saw more proof of that unequal treatment by the high court. On Monday, the court refused to halt the execution of a man in South Dakota even though it looks like he was given the death penalty because he is gay.
Ría Tabacco Mar, a staff lawyer for the ACLU’s Lesbian, Gay, Bisexual, Transgender and HIV Project, wrote about the case in The New York Times:
Some of the jurors who imposed the death penalty on Charles Rhines, who was convicted of murder, have said they thought the alternative — a life sentence served in a men’s prison — was something he would enjoy as a gay man.
During deliberations, the jury had often discussed the fact that Mr. Rhines was gay and there was “a lot of disgust” about it, one juror recalled in an interview, according to the court petition. Another said that jurors knew he was gay and “thought that he shouldn’t be able to spend his life with men in prison.” A third recounted hearing that if the jury did not sentence Mr. Rhines to death, “if he’s gay, we’d be sending him where he wants to go.”
That’s abominable; the jury’s deliberations were clearly tainted with bias and homophobia. LGBTQ people are actually at greater risk of violence and sexual assault in prison than other people.
Tabacco Mar pointed out that the Supreme Court, in an important ruling last year, acknowledged racial bias among jurors during deliberations and rightly found that “racial animus interfered with an accused person’s right to a fair and impartial trial.” Noting that the “same rule should apply when anti-LGBT prejudice taints juror decision-making,” she concluded that, by not stopping the execution, “the court’s silence sent a deeply troubling message about the value placed on the lives of LGBT people.”
As Allyson Robinson indicated, we can try to console ourselves all day with the narrowness of the Masterpiece Cakeshop ruling. But that won’t change the fact that enemies of equality were given a lifeline by a Supreme Court that still doesn’t appear to view LGBTQ people like other minorities. That will have a terrible effect on an entire generation.
Follow Michelangelo Signorile on Twitter @msignorile.