State lawmakers are pushing bills that would protect individuals and businesses who don't want to cater to same-sex couples
Two years ago, a young gay couple entered a bakery in Lakewood, Colo. The men told the proprietor, Jack Phillips, that they would like a wedding cake. But when he found out it was for the two men before him, the baker refused to make it. The couple took him to court, and Phillips is currently appealing a judge’s order that he cease what the court deemed a discriminatory practice. “The cake is an iconic symbol of marriage. Everybody knows what a wedding cake means,” says Phillips’ attorney Nicolle Miller. “Colorado just simply doesn’t recognize same-sex marriages and like the public policy of Colorado, my client doesn’t recognize same-sex marriages.”
But the Colorado wedding cake case is just one skirmish in the latest battle over gay rights in America. State lawmakers and private business owners are trying to win protections for individuals who want to refuse service to same-sex couples because of their moral or religious views. In the Kansas legislature, a bill expected to be debated this week would allow not only private businesses but also government employees to treat same-sex couples as personae non gratae—whether seeking a marriage license or a chicken dish for their reception. “It’s just really disappointing and dismaying that as LGBT people are gaining greater rights and equality under the law across the country, their opponents are becoming increasingly aggressive,” says Eunice Rho, advocacy and policy counsel for the American Civil Liberties Union.
Following the Supreme Court’s decision to strike down part of the Defense of Marriage Act last year and recent decisions bolstering same-sex marriage in conservative strongholds like Utah and Oklahoma, the tide is unmistakably turning on marriage. One result is that communities are now faced with the reality of weddings that some residents thought—or hoped—would never be allowed. Twenty states, including Colorado, have laws protecting residents from discrimination based on their sexual orientation, but most do not. Those who would like to be able to deny service to same-sex couples argue that forcing the baker to make the wedding cake amounts to a violation of his freedom of religion and speech. “Everybody knows that the First Amendment protects you from having to violate your conscience,” says Miller. “While someone may enjoy rights [like non-discrimination protections]… it doesn’t necessarily trump the right of someone’s conscience, to abstain from something they find morally reprehensible.”
Same-sex marriage opponents also argue that there is a form of reverse discrimination going on—that their views against same-sex marriage should be tolerated and protected just like the views of people who support it. “Unfortunately, same-sex marriage advocates have increasingly treated people who believe in traditional marriage as the legal equivalent of bigots and even racists,” Frank Schubert, political director for the National Organization for Marriage, tells TIME in an email. “They brook no disagreement with their ideology and they tolerate no dissent. Therefore legislation like this in Kansas becomes necessary to assure that people are not forced to personally be part of something they cannot in good conscience support. There are plenty of people willing to serve a gay marriage ceremony without having to force everyone to do so.”
But the implications of bill in Kansas, its critics emphasize, go far beyond wedding ceremonies. The measure explicitly states that no individual has to treat any marriage—of any orientation—as valid if it “would be contrary to the sincerely held religious beliefs” and can refuse to provide services like adoption, counseling or employment benefits related to the celebration of any such marriage. Those individuals would be protected from civil lawsuits that might arise as a result of that denial. “The language of the bill really allows discrimination in virtually every aspect of somebody’s life,” says Rho. She says the language could potentially protect an employer who, for instance, chose not to promote a woman because she was not as submissive in her heterosexual marriage as his religion dictated, just as much as a vendor who refused to sell wedding rings to a lesbian couple. “They’re really opening the door for all kinds of litigation,” she says.
Sarah Warbelow, state legislative director for the Human Rights Campaign, a gay rights advocacy group, says they’re monitoring more than a half-dozen bills related to refusal of services for same-sex couples across the country, all introduced in 2014. Whether those bills in states like South Dakota and Tennessee can eventually stand as laws may be affected by upcoming Supreme Court cases, she says. The high court is still deciding whether it will hear an appeal from a New Mexico-based photographer who refused to take photos for a lesbian couple’s commitment ceremony. And the court has agreed to hear a case involving Hobby Lobby. While that case primarily concerns whether employers have to provide insurance coverage for birth control if it violates their religious beliefs, Warbelow says that a ruling allowing Hobby Lobby to deny such coverage “certainly opens up the question of what other types of laws corporations can ignore simply because they have religious or moral objections.”
Warbelow says the freedom of speech and religion argument doesn’t hold water. “That isn’t consistent with interpretation of civil rights law going back decades,” she says. “Once you open your doors to the general public, you are expected to serve the general public, provided that an individual can pay for the service.”
For now, Miller says she expects Phillips will continue to refuse to make any wedding cakes for same-sex couples who may come asking at his bakery, even though he faced up to a year of jail time the last time he did so.
“It’s not about tolerance,” Miller says. “If it really was about tolerance, they would tolerate Mr. Phillips’ belief about marriage and God’s design for marriage. They don’t tolerate it.”