By Cameron Moix and Amy Gillentine Sweet
While other states still struggle with defining workplace discrimination protections for lesbian, gay, bisexual, transgender and queer or questioning Americans, Colorado’s Legislature settled the issue and made it clear: Gender identification and sexual orientation can’t be considered as reasons to fire — or not hire — Coloradans. But that doesn’t mean all issues surrounding the LGBTQ+ community and businesses are settled.
At least one large issue is still in the courts.
Can a business turn away customers based on their sexual orientation or gender identity? In a Colorado case that’s going before the Supreme Court, one business owner says it’s his right — based on artistic license and the First Amendment — to turn away clients.
The case: The owner of Masterpiece Cakeshop in Lakewood says he shouldn’t have to make a cake for a same-sex wedding. The clients sued and the case has been wending its way through the courts. The Supreme Court has agreed to hear the case, says attorney Eric Kniffin with Colorado Springs law firm Lewis Roca Rothgerber Christie.
“First, what sort of activity is covered by the public accommodation statute? Secondly, are there First Amendment rights at play here? And third, are there religious liberty rights that provide an exemption for a Christian business owner? What does public accommodation law cover? Everyone knows it covers denial of service at a lunch counter, refusal to rent a hotel room to someone,” he said. “No one disputes that.”
Kniffin said bakery owner Jack Phillips says it’s a violation of his First Amendment rights to force him to make a cake.
“The First Amendment says the government cannot compel us to attend a political parade; it can’t make us make certain statements,” he said. “The question is how far does that reach? And there are exemptions to public accommodation laws for artists. No one can demand an artist paint a picture of someone kicking a dog, for instance. No one can force a writer to put words together to create something that is in opposition to their beliefs. In some professions, you don’t have to take business that goes against your beliefs. And in the case of Masterpiece, Jack Phillips is arguing that he is an artist. He doesn’t churn out cakes. He creates them.”
Phillips has done business with LGBTQ clients in the past, Kniffin said. “There’s also the question of what counts as discrimination,” he added. “Phillips says, ‘I serve gay people all the time. I’m refusing to participate in a ceremony that has religious significance to me.’ Does that count as discrimination?”
For instance, the bakery doesn’t make Halloween cakes, won’t make cakes with anti-American themes and won’t do adult-themed cakes for bachelor or bachelorette parties.
The unresolved questions lead to conflicts, Kniffin said.
“These are big issues,” he said. “There’s a huge conflict between civil rights based on sexual orientation and religious freedom. We’re headed toward a big showdown.”
But LGBTQ advocates say there shouldn’t be a conflict — it’s a matter of diversity.
“I think there is a trend where even businesses now are saying that [LGBTQ+] folks need protection,” said Daniel Ramos, executive director of LGBTQ advocacy group One Colorado. “Businesses should be focused on a diverse workforce, and the best way to do that is ensure that they live in states where they are protected.”
The appeals courts in three states — including Colorado — have heard similar cases about businesses denying service to gay couples. All of them involve same-sex marriages. In New Mexico, a photographer refused to take photos at a same-sex wedding, and in Washington a florist refused to design the floral arrangements.
“In all three cases, the courts pooh-poohed the idea that this was creative expression,” Kniffin said. “It’s just a cake, some pictures, flowers for the wedding. That isn’t artistic expression.”
But in Kentucky, the courts ruled differently. In that case, a customer wanted T-shirts with a positive message for the Pride parade. And the court agreed with the business.
“I think the difference is that [it] is speech,” he said. “The T-shirt clearly was speech. He has the right, just like I do as a lawyer, to decline to put certain words together. In issues that are clearly speech and words, businesses can’t be compelled to participate under public accommodation law.”
The Colorado General Assembly passed four bills during the past decade that work together to prevent discrimination based on sexual orientation and/or gender identity. For a state once known as the “hate state” for a constitutional amendment that prohibited homosexual or bisexual people from claiming minority or protected status, Colorado’s come a long way, according to LGBTQ+ advocates.
“In Colorado, we passed Senate Bill 200 back in 2008, which prohibited discrimination in places of public accommodation,” Ramos said. “Those are places like schools and hospitals, and also in terms of employment and in housing. So we were one of the earlier states to pass those laws, because in 28 states it is still legal to be fired from your job for being LGBTQ.”
Businesses interested in diversity shouldn’t wait for a court case to decide how to recreate the company’s culture, Ramos said.
“Businesses can put in place their own internal non-discrimination policies,” he said. “They can choose not to discriminate on the basis of gender identification or sexual orientation; they can also update their health insurance plans to ensure same-sex couples and transgender employees have access to the health care they need through their employers.”
What it comes down to is “making sure [employers] are treating them like non-LGBTQ employees and that they are offering them the same benefits,” Ramos said.
The Denver-based nonprofit that Ramos leads is the state’s largest and most active LGBTQ advocacy organization and focuses on issues related to employment, housing, health care and education.
And while he understands the importance of religious freedom under the Constitution, Ramos said that local, state and federal governments should focus on extending protections for the many Americans who need help fighting discrimination.
“We believe that religious freedom is important — in fact, it’s already protected by the First Amendment of the Constitution,” he said. “I think a business owner deciding to deny a customer based on who they are is against the law and that people also have their individual freedoms of religion.”
Like other states, Colorado has seen its share of proposed bills exempting businesses from anti-discrimination suits based on the owners’ religious beliefs. None have passed.
“The thing that is most exciting is that we’ve seen bipartisan opposition to these bills which basically send the message that yes, religious freedom is important but already protected,” Ramos said. “These laws are unnecessary, and they would also open a can of worms in terms of our current non-discrimination laws and lawsuits.”
But Kniffin says the Supreme Court might see it differently.
“Religion and society have had rules about sexual morality forever,” he said. “I could see the Supreme Court being sympathetic to the argument that this is a different case than one of discriminating in other ways.”