Masterpiece briefs in favor of equality

This poseur calls himself a cake artist

The Supreme Court has not received a number of well reasoned briefs in support of the Colorado Civil Rights Commission (Masterpiece Cakeshop v. Colorado CRC). One of the things that I have overlooked is that the compelled speech argument made by the religious fundamentalists doesn't really work because of the lack of a government sponsored message.

This is a First Amendment case. There are two issues. The first is whether or not being required to provide a wedding cake for a gay couple is compelled speech which is dependent upon whether or not the cake is a work of art as art is understood in legal terms. The second is whether Colorado's nondiscrimination law infringes on the baker's right to free exercise of religion. The best legal arguments, in my opinion, are those that are concise and targeted.

Lambda Legal's amicus brief is seemingly not one of those. It reads as if Lambda intentionally created a companion to the more targeted legal arguments. Lambda describes at length some of the discrimination that LGBT people encounter on a daily basis, even in progressive states like New York and California. In that regard it is required reading. It is also very sad that in the 21st century, as they describe:

Across America, LGBT people are subjected to pervasive discrimination. This discrimination often blindsides its targets, hitting without warning during the myriad transactions that make up daily life. As a result, many LGBT people live defensively, always on guard against the next humiliating, ostracizing incident. From casual shaming to harassment to outright refusals of service, the treatment visited upon this minority effectively subordinates to others’ biases their freedom to live with equal dignity.

Whether or not couched as religion and/or free speech, discrimination against LGBT people inflicts immediate and lasting harm. This is true regardless of whether there are alternative accommodations possibly available. In the aftermath of discrimination, victims often must redirect their energy from the completion of ordinary daily tasks —or what should be joyful, celebratory planning for a significant life event —to recovery mode, focusing instead on managing the painful fall-out of the discrimination. Residual effects can include psychological and physical health problems, as well as difficulties due to delay or lack of appropriate alternatives.

Lambda goes on to cite a number of instances. These are stories that have never been made public before. For example:

J.M., an Alabama resident, faced discrimination by a health care provider that took the form of invasive, anti-gay proselytizing:

When my partner was a hospital patient, he told the treating physician he was gay on the first day of his hospitalization. The physician responded, “I’m sorry for that.” During a subsequent hospitalization, he was treated by the same physician. During that stay an uninvited guest showed up to the room to pray over my partner, and the following day the physician left a pamphlet on my partner’s tray that said you must “repent and be filled with the spirit or you will go to hell.” The physician continued to question my partner about his religion.

Or degradation in Chicago:

L.M., an African American gay journalist, was reviewing a Chicago hotel for a magazine for LGBT people of color. As he approached the front desk, he “heard an older African American male employee saying ‘fag,’ ‘fucking homo,’ and ‘he needs to find another hotel because he ain’t staying here’ to his co- worker.” L.M. Statement. As he explained, L.M. felt deeply humiliated:

It wasn’t whispered but blatantly directed towards to me. ... When it was my turn [at] ... the front desk, ... I confronted him about those nasty comments and he didn’t deny them. The folks behind just continued to laugh ... Never have I felt so powerless and vulnerable. That day stole a part of me. ... I began to lose my confidence, self-worth and felt invisible to the world. I shall never forget his face and the sea of laughter from his audience.

Other examples of discrimination further reinforce the diversity of settings in which same-sex couples and their families are vulnerable. Consider the series of rejections visited upon A.S. and R.S., a married couple living outside Nashville, Tennessee. When A.S. became pregnant, she wanted to deliver at home with a midwife due to her medical history. They investigated and made initial calls. But then,

excitement quickly turned to doubt, embarrassment, and sadness when the first midwife turned us down ... [saying] her midwifery practice was a part of her ministry and therefore she was not comfortable working with a same-sex couple. While I had experienced similar situations when we were planning our wedding, this felt more profound ... it was now affecting our child. As we ... were turned down by every midwife for the same reason, I felt utterly powerless and began to wonder if we would be able to find a qualified provider at all. My access to quality medical care, and that of our unborn child, was greatly reduced because of who I love. Our son was discriminated against before he was ever born.

There is much more. I encourage you to read the brief in full. I just noticed an email from Brian S. Brown titled: “NOM v Lambda Legal.” National Organization for Marriage has found another idiotic reason to ask for money. This has absolutely nothing to do with them.

If I feel up to it I might write about Brown's email tomorrow.

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