On December 5, 2017, the U.S. Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether Colorado’s public accommodations law, which bars discrimination against LGBTQ people, compels a business to make wedding cakes for same-sex weddings.
In July 2012, the Masterpiece Cakeshop refused to sell a wedding cake to a same-sex couple because it violated the shop’s owner’s religious belief that marriage is between one man and one woman. The couple filed a complaint under Colorado’s public accommodations law, which prohibits businesses open to the public from discriminating against customers on the basis of sexual orientation. The Colorado Civil Rights Commission agreed with the complainants, ruling that the cake shop owner engaged in sexual orientation discrimination when he declined to design a custom cake honoring a same-sex marriage. On appeal, the Colorado Court of Appeals found no First Amendment violation, and ruled that despite the artistic nature of creating a custom cake, the act of making the cake was part of the expected conduct of the business, and not an expression of free speech nor free exercise of religion.
Although the case does not directly involve Title VII, which prohibits discrimination in the workplace, the Supreme Court’s decision in Masterpiece Cakeshop may provide insight into its view of sexual orientation discrimination and, by extension, the question of whether the Court might extend Title VII’s protections to sexual orientation. The issue of whether Title VII’s prohibition on sex discrimination includes a bar on sexual orientation discrimination is hotly contested. As it stands, there is a split in the federal courts on this issue. For example, while the Eleventh Circuit Court of Appeals held in Evans v. Georgia Regional Hospital that Title VII did not protect workers based on sexual orientation, one month later the Seventh Circuit Court of Appeals held in Hively v. Ivy Tech Community College of Indiana that Title VII does protect workers based on their sexual orientation.
To add to the confusion, federal agencies have recently taken different positions on this issue. Earlier this year, the U.S. Department of Justice (DOJ) filed a brief with the Second Circuit Court of Appeals in Zarda v. Altitude Express urging the court to find that Title VII does not protect against sexual orientation discrimination in the workplace. Conversely, the U.S. Equal Employment Opportunity Commission (EEOC) takes the position that Title VII’s ban on sex discrimination encompasses a prohibition on sexual orientation discrimination. Interestingly, the DOJ and EEOC argued different sides of the Zarda appeal, which is highly unusual.
Absent Congressional action, which seems unlikely, the Supreme Court will eventually take up the issue of Title VII’s application to sexual orientation discrimination, particularly given increased attention focused on this area and the split among federal courts on the issue. Although Masterpiece Cakeshop won’t resolve the issue, the outcome of this case will be telling.