In December, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, its most significant lesbian, gay, bisexual and transgender (LGBT) rights case since upholding the right to marriage equality in 2015. The vocal public debate around the case might suggest there’s little common ground on anti-discrimination laws. But as state legislatures reconvene this month, lawmakers across the United States have a real opportunity to forge common ground by enacting protections that have widespread public support.
By now, the facts of the Masterpiece Cakeshop case are most likely familiar. A baker in Colorado declined to make a wedding cake for a same-sex couple. The Colorado Civil Rights Commission decided the refusal violated a state law prohibiting discrimination based on sexual orientation in restaurants, hotels and other facilities open to the public. The baker sued the state, contending that applying the anti-discrimination law violated his constitutional freedoms of speech and religion.
The baker is seeking an exemption from a law protecting LGBT people in the marketplace. But a key fact has largely escaped attention: in 2018, most states still lack these underlying protections. Almost every state has some kind of anti-discrimination law that prohibits discrimination on specified grounds — for example, race, sex, religion, disability, age, or veteran’s status. But only 19 states and the District of Columbia have laws that explicitly prohibit discrimination against LGBT people in employment, housing, and public accommodations.
Some others offer partial protection. In Utah, anti-discrimination laws protect LGBT people in employment and housing but not public accommodations. New Hampshire and Wisconsin have anti-discrimination laws that cover sexual orientation but not gender identity. And in 28 states, there is no explicit prohibition of discrimination against LGBT people, leaving them vulnerable to being fired, evicted or refused service for any reason at all.
States have had plenty of opportunities to provide these protections. In 2017, legislation to enact partial or comprehensive anti-discrimination protections was introduced in 24 states — but did not pass in any of them. Many of these bills have been reintroduced for years, or even decades. In 2018, bills already have been filed in Arizona, Florida, Indiana, Kentucky, Mississippi, Missouri, Nebraska, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Utah, Virginia and West Virginia, and more are expected in the weeks to come.
The American public overwhelmingly supports these safeguards. In its first poll asking the question 40 years ago, Gallup found that a majority of those polled — 56 percent to 33 percent — agreed that gay and lesbian individuals should have equal rights in employment. By 2015, the Public Religion Research Institute found that 71 percent of Americans polled favored laws that protect LGBT people from discrimination in employment, housing and public accommodations. Nor is this a partisan issue; the data show a majority in every political party, every religious group and every state in the United States favors LGBT-inclusive anti-discrimination laws.
So why haven’t those laws been passed?
A primary reason is that lawmakers have allowed disagreements about religious exemptions to stymie a broader commitment to equality. Historically, lawmakers have found ways to advance LGBT equality with narrowly crafted exemptions that did not undermine the law at issue and were generally acceptable to both sides. Neither state nor federal courts require religious denominations to officiate at same-sex weddings, for example, and many of the states that legalized same-sex marriage prior to the Supreme Court’s ruling in Obergefell v. Hodges permitted religious organizations and societies to opt out of providing services related to solemnizing marriages.
But increasingly, lawmakers are enacting sweeping exceptions without ever bothering to establish the rule itself. Mississippi passed a law exempting religious objectors from serving LGBT people, but it is unclear from what they are being exempted, since the state has not passed even basic anti-discrimination protections. In 2017, Alabama, South Dakota and Texas all enacted laws permitting adoption and foster care agencies to discriminate based on their religious beliefs, but have yet to adopt laws that protect LGBT parents and families from discrimination more generally.
By taking this backward approach, lawmakers aren’t just protecting those who wish to adhere to their religious beliefs about sexuality — they’re giving a free pass for those who simply don’t like LGBT people to discriminate at will.
In the Masterpiece Cakeshop case, the baker’s defenders frame his refusal narrowly, as an artist’s right not to participate in a same-sex wedding, and claim they do not endorse discrimination against LGBT people more broadly. If that’s true, passing basic LGBT-inclusive anti-discrimination protections that generally protect LGBT people from being fired, evicted or denied service should be a no-brainer.
As advocates on both sides focus on wedding cakes, we risk missing the forest for the trees. For more than 40 years, the public has supported anti-discrimination laws protecting the LGBT community. If legislators in Missouri, Ohio, Pennsylvania and other states are serious about forging common ground after Masterpiece Cakeshop, enacting these basic anti-discrimination protections would be a good start.
