The Masterpiece Cakeshop Supreme Court Case Is One Piece of a Much Larger Attack on LGBTQ Lives
This term the Supreme Court will hear a case, Masterpiece Cakeshop, Ltd. v. Charlie Craig & David Mullins, involving a Colorado bakery that refused to serve a same-sex couple who wanted to purchase a cake for their wedding reception.
Colorado law prohibits discrimination in places of public accommodations — places like bakeries, movie theatres, restaurants, hospitals, and other establishments open to the public — based on sexual orientation, among other protected classes. The Colorado courts, interpreting this straightforward law, held that the bakery’s refusal to serve the couple constituted discrimination based on sexual orientation and that there is no constitutional right to discriminate that supersedes this protection.
Now before the United States Supreme Court and supported by anti-LGBTQ groups, and the United States Department of Justice, the bakery argues that it has a First Amendment right to discriminate based on the owner’s religious beliefs. The owner also claims that because his business — making cakes — involves some creativity, he should be allowed to determine who can receive his services.
His argument can be deceptively appealing. Cakes can often have artistic or creative designs. So can sandwiches, legal briefs, bicycles, cars, flowers, medical care. Indeed, the work that we do often has great personal meaning to us and reflects our skill and passion.
But it is wrong to think that (1) any business that involves a creative component should be exempt from nondiscrimination laws, or (2) that a business is somehow endorsing each and every customer it serves.
As civil rights attorney Mary Bonauto wrote in a recent piece for :
Earning a living from the sweat of one’s brow coexists with human creativity, with the passion for cutting hair or cooking food, with designing and sewing clothing – with making something both functional and beautiful. Uplifting the dignity and creativity in all work, Dr. Martin Luther King spoke of the “street sweeper” who could “sweep streets like Michelangelo painted pictures; sweep streets like Handel and Beethoven composed music; sweep streets like Shakespeare wrote poetry.”
To argue, as do Masterpiece Cakeshop and the Department of Justice in this case, that the exemption that would be created by a ruling for the business is narrow, is to ignore that reality. If we start to exempt from nondiscrimination laws businesses that reflect creativity and passion, such a move would undermine all nondiscrimination protections.
Alliance Defending Freedom (ADF), the organization defending the business at the Supreme Court, is taking great pains to frame this case as one about art and expression. It is using this tactic to gain support and obscure the fact that this case is part of a broader strategy to banish LGBTQ people from public life.
This is not about cake. This is about demolishing the legal protections that exist against discrimination in places of public accommodation.
Groups like ADF have already seeking to exempt from nondiscrimination protections any action that infringes upon an individual or businesses deeply held religious or moral belief that: “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.”
I shudder at this final point since it means a moral or religious belief that trans people do not exist. And that is precisely what ADF and others have argued time and time again in litigation.
In the past two years, they and others have advanced the arguments that it is “” for the federal government to protect transgender students from discrimination, that having a gender that does not accord with the gender assigned to a person at birth is a “,” and that providing health insurance coverage for gender transition would amount to “material cooperation with evil.”
If the Supreme Court sides with the bakery, the systematic rejection of LGBTQ people from public life will gain legitimacy and anti-LGBTQ movements will grow stronger.
It is possible to value creative labor and religious liberty without gutting generally applicable legal protections against discrimination and opening the door to a world in which trans people are rejected from public life because people don’t believe we do or should exist.
If a baker can reject LGBTQ people because of who we are, then what about the mechanic, the florist, the doctor, the teacher? This is not about cake. This is not about art. This is about survival.
Learn More About the Issues on This Page
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.