Business owners must put aside their religious objections to same-sex marriage and comply with state laws prohibiting discrimination against gays and lesbians in providing goods and services, Maryland Attorney General Brian E. Frosh said this week in joining a U.S. Supreme Court brief supporting a gay couple who sought to buy a specialty wedding cake from an unwilling Colorado baker.
“The law is clear that businesses must comply with local civil rights and anti-discrimination laws,” Frosh said in a statement Monday announcing he had joined attorneys general from 18 other states and the District of Columbia. “This is not just a legal argument against discrimination, it’s about protecting the civil liberties of all Americans.”
On Dec. 5, the Supreme Court will hear argument that the constitutional First Amendment rights of Masterpiece Cakeshop Ltd.’s husband-and-wife owners to free speech and religious exercise enabled them to deny service to the soon-to-be-wed Charlie Craig and David Mullins, Colorado’s gay-rights law notwithstanding.
The attorneys general of Massachusetts and Hawaii spearheaded the friend-of-the-court brief urging the justices to uphold the Colorado courts’ decision in favor of the couple.
“Allowing commercial businesses to use the First Amendment as a shield for discriminatory conduct would undermine state civil rights laws and the vital benefits they provide to residents and visitors, leaving behind a society separate and unequal by law,” wrote Maura Healey and Douglas S. Chin, the attorneys general of Massachusetts and Hawaii, respectively. “Many Americans would face exclusion from a host of everyday businesses or, at the very least, the ever-present threat that any business owner could refuse to serve them when they walk in the door – simply because of their sexual orientation, or their race, religion, or gender.”
The attorneys general’s brief cites Supreme Court cases upholding civil rights laws banning discrimination on the basis of race against constitutional challenges.
For example, the brief notes Justice William O. Douglas’ concurring opinion in Bell v. Maryland, a 1964 decision in which Robert M. Bell — who would become the first black chief judge of the state’s top court — had challenged his conviction for “trespassing” during a sit-in at the whites-only Hooper’s restaurant in Baltimore in 1960.
The Supreme Court remanded the case, citing the city’s then-fledgling nondiscrimination-in-public-accommodations ordinance. But Douglas said the justices should have held – as they later did — that the Constitution’s 14th Amendment guarantee of equal protection prohibits whites-only establishments.
“The federal Constitution simply does not provide commercial businesses a right to ‘pick and choose’ customers in violation of state law,” the attorneys generals’ brief stated.
“Enforcing content- and viewpoint-neutral public accommodations laws to prevent commercial businesses from refusing to serve customers because of their race, gender, religion, or sexual orientation does no harm to either free exercise or free speech rights,” the brief added. “The First Amendment does not bar states’ efforts to combat the societal disintegration and economic balkanization caused by this kind of discrimination.”
Massachusetts and Hawaii were the first states whose supreme courts concluded that gay couples have a constitutional right to marry. The U.S. Supreme Court later reached the same conclusion in its June 2015 decision in Obergefell v. Hodges.
Maryland was the first state to approve same-sex marriage by popular vote. The law, which went into effect on Jan. 1, 2013, had been passed by the General Assembly and signed by then-governor Martin O’Malley before being approved in a statewide referendum.
The other states on the attorneys general’s brief are California, Connecticut, Delaware, Illinois, Iowa, Maine, Minnesota, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.
The Supreme Court case is Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al., No. 16-111. The justices are expected to render their decision by the summer.