The ground being gained in the fight for marriage equality since the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), has led many to believe that all is well in the advancement of LGBT rights. Many courts across the country have followed Windsor, which held the federal Defense of Marriage Act (DOMA) unconstitutional, to invalidate state bans on same-sex marriage. See, e.g., Bishop v. Smith, Nos. 14–5003, 14–5006, 2014 WL 3537847 (10th Cir. July 18, 2014); Bostic v. Schaefer, Nos. 14–1167, 14–1169, 14–1173, 2014 WL 3702493 (4th Cir. July 28, 2014); Brenner v. Scott, Nos. 4:414cv107–RH/CAS, 4:14cv138–RH/CAS, 2014 WL 4113100 (N.D. Fla. August 21, 2014). However, LGBT discrimination continues to be a significant problem that may be intensifying. Emboldened by the more recent Supreme Court decision in Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), employers are finding new ways to justify LGBT discrimination, and some states—such as Mississippi—have even gone as far as to affirmatively legalize this type of discrimination.
Discrimination against LGBT individuals is not happening only in places like Mississippi; it is happening in Colorado too. Take for example, the case of David Mullins and Charlie Craig, who in 2012 were denied service at Masterpiece Cakeshop while attempting to order a cake to celebrate their same-sex wedding (the wedding was to take place in Massachusetts, where same-sex marriage is legal). When Mr. Mullins went to Masterpiece to purchase the cake, the owner of Masterpiece refused to serve Mr. Mullins, stating that, because of his religious beliefs, it was Masterpiece’s policy to deny service to customers celebrating same-sex unions.
Mullins and Craig filed a charge with the Colorado Civil Rights Division (CCRD), and the Colorado Civil Rights Commission (CCRC) issued a ruling that Masterpiece violated the provisions of the Colorado Anti-Discrimination Act (CADA) governing public accommodations, C.R.S. § 24–24-601. That law prohibits the refusal of service based on protected characteristics including race, sex, marital status, and sexual orientation. As part of its order, the CCRC required Masterpiece to serve same-sex couples and re-educate staff. Masterpiece recently appealed to the Colorado Court of Appeals, arguing that adhering to CADA would infringe upon its First Amendment rights to free expression and free exercise of religion.
First Amendment arguments like those made by Masterpiece may be gaining more traction after the Supreme Court’s Hobby Lobby decision. In that case, the United States Supreme Court ruled that corporations are “persons” capable of expressing religious beliefs, and a law that operates to make the practice of religious beliefs more expensive imposes an impermissible burden on the exercise of that corporation’s religion.
So-called religious liberty legislation has been recently proposed in fourteen states, including a majority of the states within the Tenth Circuit: Utah, Kansas, and Oklahoma. In April, Mississippi signed into law the “Mississippi Religious Freedom Restoration Act,” which adds “In God We Trust” to the state seal and provides that the government cannot interfere with a person’s exercise of religion—even if the exercise of one’s religion means discriminating against gays and lesbians. In addition to legislation authorizing LGBT discrimination, decisions like Hobby Lobby could provide courts with justification to accept the argument that “religious liberty” should trump anti-discrimination laws, thus allowing LGBT-discriminatory businesses (and individuals) to deny equal rights to LGBT community members.