Almost daily of late, there is a new report or announcement regarding the intersection of religious beliefs permits and anti-discrimination principles. One matter that is being watched by many is the appeal pending before the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 137 S. Ct. 2290 (2017), in which the court granted review to decide “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”
The facts underlying the Masterpiece Cakeshop appeal are largely undisputed. David Mullins and Charlie Craig were planning an out-of-state wedding, and went to Masterpiece Cakeshop, a Colorado bakery, to ask about a cake for a reception they were planning (in Colorado) for their friends and family. Jack Phillips, the bakery’s owner, told them he would not prepare a wedding cake to celebrate their wedding because he objected to same-sex unions. The couple left after expressing displeasure. Phillips and Masterpiece assert that his objection to same-sex unions is based on his religious faith, and that Colorado’s civil rights law prohibiting discrimination in public accommodations based on sexual orientation should not prevent him from refusing to prepare a cake for their wedding reception, see Craig v. Masterpiece Cakeshop, 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop. v. Colorado Civil Rights Commission, 137 S. Ct. 2290 (2017). Oral arguments were held in December 2017, and as of this writing, the court has not decided the matter.
More than 20 years ago, in another case out of Colorado involving LGBT people, the U.S. Supreme Court explained that laws prohibiting discrimination offer “protections taken for granted by most people either because they already have them or do not need them” and that prohibitions against discrimination in places of public accommodation “are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society,” as in Romer v. Evans, 517 U.S., 620, 631 (1996). In earlier cases, the court explained that the government’s interest in prohibiting discrimination based on sex (as well as race) is compelling, as in Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); (concluding that “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent”).
In earlier cases, the court and other courts addressed—and rejected—claims that religious views warrant exemption from antidiscrimination prohibitions. While recognizing the important place that religion holds for many, and the Constitutional protection it receives, religious beliefs have been deemed to be legally insufficient to justify discrimination based on race; Bob Jones University v. United States, 461 U.S. 574, 580, 583 n.6 (1983) (rejecting claims by Christian school that restricted admissions of African-American applicants based on beliefs that “mixing of the races” would violate God’s commands); and also legally insufficient to justify discrimination based on sex; Equal Employment Opportunity Commission v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) (school violated anti-discrimination law by offering unequal health benefits to female employees).
Unlike Colorado, Pennsylvania does not have a statewide law explicitly prohibiting discrimination based on gender identity or sexual orientation. Nevertheless, the issues are significant for people here. In recent estimates, Pennsylvania, 3.6 percent of the adults surveyed by Gallup in 2016 identified as LGBT. Gary J. Gates, Vermont Leads States in LGBT Identification, Gallup (2017) (last visited Feb. 21, 2018). Based on the adult population of the 2010 U.S. Census figure of 12.7 million people, therefore, more than 350,000 LGBT adults live in the commonwealth. (U.S. Census Bureau, Quick Facts: Pennsylvania), available at https://www.census.gov/quickfacts/PA (last accessed Feb. 21, 2018).
Discrimination is all too common for people who are LGBT, as is the fear of participating in places where it is likely. In a 2017 national survey of LGBTQ individuals about experiences and perceptions of discrimination in their community, approximately one in five respondents reported experiencing discrimination because of their LGBT identity in employment or housing, and more than one in six reported that they avoided seeking medical care due to concern that they would be discriminated against because of their identity. National Public Radio, Robert Wood Johnson Foundation, and Harvard T.H. Chan School of Public Health, Discrimination in America: Experiences and Views of LGBTQ Americans (Nov. 2017), available at https://www.npr.org/documents/2017/nov/npr-discrimination-lgbtq-final.pdf.
The harms caused by discrimination, whether religiously or secularly motivated, are significant, often lasts well beyond the incident itself, and sadly is too often repeated during a person’s lifetime. In 2011, the Institute of Medicine published an authoritative overview of the public health research addressing health disparities impacting LGBT people; that report repeatedly notes the adverse health consequences of prejudice. For example, the IOM report observes, among other conclusions, that although LGBT people share many of the same health risks faced by the rest of society, they also face a profound and poorly understood set of additional health risks due largely to social stigma, and that “stigma has exerted an enormous and continuing influence on the life and consequently the health status of LGBT individuals.”
Indeed, testimony from decades ago at a 1982 public hearing on the subsequently enacted proposal to amend Philadelphia’s Fair Practices Ordinance to add sexual orientation as a protected characteristic included testimony recounting long-lasting harm, see Council of the City of Philadelphia, Trans. of Public Hearing before the Committee on Rules, at 81-84 (July 27, 1982), City Ex. 11 (July 27, 1982) (testimony from mother of a lesbian who lived “in constant fear” because of discrimination at her job, when seeking housing and on visits to doctors’ offices); see also (testimony from Dr. Mary Cochran, a mental health professional, describing the impact of minority stress on gay people). Undoubtedly, similar testimony has been and will be offered before other legislative bodies in Pennsylvania.
After the Supreme Court issues its ruling, these issues likely will continue unfolding for months and even years. For example, the U.S. Department of Health and Human Services (HHS) recently published notice of a proposed rule, “Protecting Statutory Conscience Objections,” that seeks to provide support to health care providers seeking to avoid providing treatment that conflicts with religious or moral beliefs. Last month, HHS announced a new “Conscience and Religious Freedom Division” in its Office of Civil Rights, and reports that more than 300 complaints have been filed since then (contrasting with 34 conscience complaints filed before November 2016). The substance of those complaints have not been made public, but some anticipate that a significant number of complaints will relate to health matters and services involving reproductive health and contraception, and LGBT people.
The foregoing summary provides only a very broad survey of some of the data and precedents underlying the key issues raised. While limited in scope, I hope it helps provide context and perspective for what’s at stake in Pennsylvania. A more comprehensive examination could easily consume volumes, because there are many additional resources addressing the scope of these issues and their impact on our civic community. And, undoubtedly, many more will be created as we move forward, for even if future disputes are resolved the same way that the prior ones were, the likelihood of a swift and complete resolution seems slim.
Thomas W. Ude Jr. is Legal and Public Policy Director at Mazzoni Center, a Philadelphia nonprofit whose mission is to provide quality comprehensive health and wellness services in an LGBTQ-focused environment, while preserving the dignity and improving the quality of life of the individuals it serves. Contact him at firstname.lastname@example.org or 215-563-0652, ext. 233.