Can you guess who wrote the following?
“…gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth…”
States can “protect gay persons…in acquiring whatever products and services they choose on the same terms and conditions as they are offered to other members of the public.”
Many of you will recognize that these statements are taken from Justice Anthony Kennedy’s majority opinion in the Masterpiece Bakeshop case.
This could have been an earth-shattering case. But, as Shannon Minter, the legal director at the National Center for Lesbian Rights observed of Kennedy’s opinion: “[It] does not break any new constitutional ground or create any new exemptions to anti-discrimination laws.”
The Masterpiece Bakeshop case was neither the victory that opponents of same-sex marriage had hoped for nor the scalding outcome that LGBTQI people had feared. What could have been a game-changer ended up being a very narrow opinion that hinged on how one discrimination case was handled by one specific body, the Colorado Civil Rights Commission. The opinion does not change any laws prohibiting discrimination. It does not challenge the general principle behind anti-discrimination laws. To the contrary, it specifically affirms that principle.
That’s the good news. Not great news—we would have hoped that the case might result in an opinion that moved equal protection a step ahead—but reasonably good news nonetheless.
Where does the opinion leave the queer community and our allies?
It’s always confusing when courts issue opinions that seem to reflect some unsettling effort to find a middle ground when the opinion is about our very lives. But, like it or not, that’s what Kennedy and the justices who voted with him gave us. That is what we have to work with—not what we hoped for and not the legal buzz saw that we might have encountered. I certainly experience disappointment, sadness, anger, and fear about the outcome of the Masterpiece case. And, if I want to both be realistic and prepare myself for further efforts on behalf of LGBTQI rights, I also need to realize that we dodged a bullet, and allow myself to breathe some measure of relief and feel grateful for the efforts of so many queer and ally persons who worked hard over so many decades to change attitudes enough that Justice Kennedy could spare us the legal buzz saw. In the not distant past, that would have been unthinkable.
If that seems like too much gratitude for a rather paltry “victory,” then remember that change often happens in just this sort of way.
And that brings me to the next part of what this means for our community. The tactic of pushing for so-called religious exemptions is the tool of the backlash. Opponents of queer rights have been using that tool to undo the progress that we have made, particularly in the arena of marriage equality. (They have been using the tool in a similar fashion to cripple reproductive freedom as well, of course.)
We need to push back by understanding how the appeal to religious exemptions works and why it is often so misleadingly seductive. In the light of a strong and noble First Amendment, the push for religious exemptions represents an effort to undermine the rights of stigmatized groups. We have to educate ourselves and our communities about religious exemptions because they are a tool that will come back over and over again. And, given recent and continuing appointments of federal judges, that is not good news.
Some people will tell you that the law is the law and it exists beyond the realm of mere attitudes. Do not believe it. Laws are influenced by attitudes (and vice versa). Commit yourself to knowing about and helping others to understand the problems brought on by exempting certain groups of people from having to follow anti-discrimination laws.
We need to simultaneously work to convince everyone that states that do not have anti-discrimination laws covering gender identity/expression and sexual orientation need to get their acts together. And, of course, we need to elect senators and Congressional representatives who will keep the conversation about the need for a fully inclusive Equality Act alive.
We would do well to remember that persons who profess religious faith are not our enemies. Bias and bigotry are. There are many religions and many types of faithful. Indeed, some people are inspired to be our allies precisely by virtue of their religious and moral beliefs.
In the spirit of using what we have to build on, we need to insist that our employers renew and publically emphasize their commitment to fair treatment of all workers and customers.
We also need to take care of ourselves and one another, remembering to spend our time building community and culture as well as fighting against oppression.
And, finally, dear friends in the LGBTQI and allies/accomplices communities, we need to amplify our efforts to challenge attitudes that demean—quietly or otherwise—anybody because of their membership in any group. Let our efforts to reduce bias in our own communities serve as an example of what is possible.
Glenda Russell, Ph.D.