Earlier this week, a number of disability rights organizations submitted an amicus curiae briefto the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, an important civil rights case out of Colorado. Proud to say that I have a special connection to two of the appearing amici: I sit on the Board of Directors of the Disability Rights Bar Association, and also serve on the Litigation Committee of the Civil Rights Education and Enforcement Center. The fantastic firm of Rosen Bien Galvan and Grunfeld authored the brief.
The Masterpiece Cakeshop case poses the following question: Does the First Amendment provide businesses that open their doors to the public a constitutional right to discriminate? Obviously, my colleagues and I believe the answer to be a resounding NO.
Two gay men, David Mullins and Charlie Craig, visited the Masterpiece Cakeshop in July 2012 to order a cake for their upcoming wedding reception. Masterpiece owner Jack Phillips informed the men that because of his religious beliefs the store’s policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple’s wedding. Mullins and Craig filed complaints with the Colorado Civil Rights Division (“CCRD”) contending that Masterpiece had violated the state’s Anti-Discrimination Act by refusing them service. That Act provides:
It is discriminatory practice and unlawful for a [place of public accommodation] . . . to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.
CO Rev Stat § 24-34-601 (2016)
The CCRD ruled in the couple’s favor, and Masterpiece appealed. In a May 30, 2014 decision, the Colorado Civil Rights Commission affirmed the CCRD’s finding that Masterpiece Cakeshop had engaged in discrimination, and ordered the business to: (1) modify its company policies; (2) provide comprehensive staff training regarding public accommodations discrimination; and (3) provide quarterly reports for two years regarding steps it has taken to come into compliance with Colorado’s Anti-Discrimination Act and whether it has turned away any prospective customers. The Colorado Court of Appeals affirmed the decision of the Commission on August 13, 2015, and Masterpiece appealed to the Colorado Supreme Court. When that court declined to hear the case, Masterpiece asked the Supreme Court of the United States to hear the case. The High Court announced its intent to review the appeals court decision on June 26, 2017; the case is scheduled to be heard on December 5, 2017.
How Does the Case of the Bigoted Baker Impact Disability Rights?
If legally acknowledged by the U.S. Supreme Court, the bigoted baker’s argument that religious freedom and freedom of expression provide valid defenses to a business’ non-compliance with anti-discrimination laws will weaken the rights of people with disabilities under the Americans with Disabilities Act (“ADA”). This, in turn, will jeopardize the ADA’s express goals of “equality of opportunity, full participation, independent living, and economic self-sufficiency” for disabled individuals. This is not just an alarmist prediction; businesses have used religious freedom and freedom of expression defenses in the disability rights context previously.
For example, in Colorado Cross-Disability Coal. v. Abercrombie & Fitch Co., disability advocates sued Abercrombie & Fitch Co. (“A&F”) over their use of inaccessible raised porch platforms at their Hollister clothing stores. 835 F. Supp. 2d 1077, 1078 (D. Colo. 2011). The store’s inaccessible entrances, as built, clearly violated the ADA’s accessibility requirements, with the effect of pushing people using wheelchairs to enter the store separately from shuttered side entrances. A&F argued that their non-compliance with accessibility standards, and segregated/unequal treatment of people with disabilities, was no big deal, and that the inaccessible porches were a “visual experience” and an integral part of their surf-lifestyle branding. In other words, A&F argued that its right to creatively express and brand itself, allowed it to disregard long-standing disability rights laws. Hogwash.
After six years of litigation, including mixed results from the Tenth Circuit Court of Appeals — affirming plaintiffs’ standing and the validity of class certification, but denying that the porches violated the ADA’s 1991 regulations — the Hollister lawsuit settled with an agreement by A&F to take steps to make the stores more accessible.
*Notably, I had the pleasure of drafting an amicus briefin the Hollister case on behalf of the following national disability rights organizations: Legal Center for People with Disabilities And Older People, American Association of People with Disabilities, Center for Rights of Parents with Disabilities, Disability Rights Advocates, Disability Rights Education and Defense Fund, Disability Rights Legal Center, Legal Aid Society – Employment Law Center, National Disability Rights Network, and National Federation of the Blind.
Important Interests at Stake
Should the Supreme Court agree that businesses with an expressive or creative element can refuse service to some people as a valid exercise of religious freedom or freedom of expression, any business owner that provides custom services or products could claim a right to discriminate – and it won’t be limited to discrimination based on sexual orientation. A hotel could refuse to rent space to an interracial couple for their wedding; a childcare provider could deny services to a divorced parent; a tailor could refuse to alter a suit for a bat mitzvah; restaurants could disregard access requirements claiming the inaccessible features of their facilities to be part and parcel of their “branding”; a funeral home could deny services to the family of someone with mental illness who died from suicide.
In sum, it would allow the Constitution to be used to protect discrimination.
Unsurprisingly, the Trump administration, in a continuation of its attack on LGBTQI persons and civil rights, filed a brief in support of Masterpiece last month. In it, the Department of Justice agreed that the cakes of Masterpiece owner Jack Phillips are a form of expression and that he cannot be compelled to use his talents for something he does not believe in. It is absolutely disgusting that our current government would support such a position. Crossing my fingers the Supreme Court gets this one right.