Ten years ago, my partner and I walked into a jewelry store to purchase wedding bands. Jim tried on a handful of yellow-gold rings to start us off, and then – assuming I was the best man, I guess – the clerk asked about the bride’s ring.
Time froze as I realized we needed to come out. Would she scorn us, embarrass us, tell us to leave? I felt my heart pound and a trickle of sweat drip down the back of my neck, as I told her we were a couple. She left the counter and went into the back room … and came back with another pair of yellow-gold rings. Less enthusiastic but ready to sell two rings.
Nearly every same-sex couple I know has a story like this, and not all of them end well. From a humiliating moment at a hotel check-in counter to being turned away by an adoption agency, we’ve all had those moments that made us feel less than fully human, less than fully equal as Americans – or that made us sweat in anticipation of rejection.
I am sick and tired of being drenched in that particular sweat. That’s why I had hoped for more guidance – no, actually, real protection – from Justice Anthony Kennedy, who instead kicked the can down the road last week. Kennedy wrote the majority decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a Supreme Court case that asked whether a baker could refuse to provide a wedding cake to a same-sex couple based on his religious beliefs.
Like most LGBTQ people, I wanted Kennedy to be the tiebreaker establishing that businesses cannot discriminate by claiming religious freedom. I wanted the court to affirm the right of Dave Mullins and Charlie Craig to buy the wedding cake of their dreams from the bakery of their choice. I wanted other gay couples not to have to feel that trickle of sweat when they shopped for rings, checked into a hotel or called a wedding cake maker.
Instead, the court’s ruling was largely based on the “impermissible anti-religious bias” of the Colorado Civil Rights Commission, which had ruled in the couple’s favor. One commissioner said, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust,” a statement that seven justices deemed hostile to religion. Call it a technical foul. Still, the decision wasn’t the big win organized religions had hoped for – but that they are loudly claiming nonetheless – nor was it the crushing defeat that many in the LGBTQ community had secretly feared.
But it gives me no comfort.
LGBTQ advocates such as James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender and HIV Project, are openly upbeat. He relayed his perspective on a conference call Monday, soon after the decision was announced: “The bakery may have won the battle, but it lost the war.” By that he meant that Jack Phillips and his counsel, the Alliance Defending Freedom, did not get the broad constitutional right to discriminate that they had sought.
But it was hard to ignore the headlines, which proclaimed the “Christian baker” as the victor. The Washington Post’s front page read: “Justices side with baker who didn’t serve gay couple.” The New York Times wrote, “Justices favor baker in case on gay rights.”
I chatted (online and off) with a number of friends and acquaintances to get their takes on the ruling. Cassandra Perry, executive director of a social service agency in the Bronx, acknowledges that some Christians “are sincere in their beliefs” but wonders just how much latitude they will now have to refuse to serve certain people based on those beliefs. Christina Askounis, a retired professor and novelist, told me she’s “mystified” by the ruling. “How far and to whom does this kind of ‘right of refusal’ extend? Can a Christian Scientist home health care worker refuse to assist in giving someone their medication? Can a postal worker who is a devout Muslim refuse to deliver publications that have an anti-Muslim bias?”
Because of the narrow scope of this ruling, the answer to her questions is “no” – at least for now. Will the triumphant headlines for the Christian baker empower other business owners to say no to LGBTQ customers?
Late Monday, I emailed with Brennan Lewis, 21, a self-described gender-nonconforming queer person. Without prompting, Lewis zeroed in on the most odious risk of this ruling: how it will play out on the ground. “I’m getting ready to head out on a trip to rural areas in several Southern states with my partner,” Lewis said, “and I’m already nervous about finding places to eat lunch on the road and to spend the night. If business owners could legally refuse service to me and my partner because of my identity, I might not be able to travel cross-country. I would be terrified to stop in some areas. … I would feel like a second-class citizen.”
I remember that feeling. I hate that another generation must learn to experience it.
Yes, this ruling – by not stating definitively that anti-gay discrimination is intolerable – has again stigmatized LGBTQ people as second-class citizens. It smacks doubly hard coming on the heels of the 2015 Obergefell ruling legalizing civil marriage between same-sex couples nationwide, which made us feel downright human.
But don’t count us out. Eric Marcus, 59, author of “Making Gay History” and now host and executive producer of the podcast of the same name, gave me more reason to hope – and less to fear. “Having been around for a few decades,” he said, “I know that this decision will inspire many others to rise up and fight against those who choose to treat LGBTQ folks as less than equal.”
Of course I – we – will rise up and will prevail. That’s who I am. That’s who the ACLU’s James Esseks is. That’s who Dave Mullins and Charlie Craig are. That’s who LGBTQ people are.
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