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    At Stake in the Kavanaugh Nomination: Exclusion and Separation

    By John Lewis and Stuart Gaffney–

    Few matters could be more important to the lives of LGBTIQ Americans than defeating the nomination of Brett Kavanaugh to the U.S. Supreme Court. Today we look at one issue: businesses attempting to deny service to LGBTIQ people in the name of religion—most often conservative Christianity.

    When people choose to open businesses to make profit off of the public, the law requires them to put aside personal religious or other views that would exclude members of the public whom anti-discrimination laws protect. The ability to be served just like anybody else at businesses ranging from overnight accommodations to food establishments to myriad service providers is crucial to the dignity, health and wellbeing of LGBTIQ people, other groups that face discrimination and our society at large.

    Pandering to his evangelical Christian political base, President Trump, who nominated Kavanaugh, would like to have it otherwise—declaring on “Religious Freedom Day” that no business “should be forced to choose between the tenets of faith or adherence to the law.” And last month, Attorney General Jeff Sessions announced creation of the so-called “Religious Liberty Task Force,” in the face of what he claims is “a dangerous movement, undetected by many” that “is now challenging and eroding … religious freedom.”

    There’s a reason the movement is “undetected”—there’s actually no such movement at all. The rhetoric is part of a years-long campaign to instill fear, particularly in conservative Christians, as a means to raise money from them and to get them to vote for conservative candidates and measures, thereby furthering the political power of particular conservative organizations, leaders and officeholders. Indeed, Trump, in an August 27 closed door meeting, told evangelical Christian leaders that the midterm elections are a “referendum on your religion” and that opponents “will overturn everything that we’ve done and they’ll do it quickly and violently.”

    These types of tactics, used in many different forms for decades to oppose LGBTIQ rights along with women’s rights and other civil liberties, have recently gained prominence again in relation to LGBTIQ issues because of successes such as marriage equality. The U.S. Supreme Court will play a critical role in determining the degree to which these conservative efforts affect public policy, and thus people’s lives.

    The Supreme Court largely sidestepped the issue in this June’s Masterpiece Cakeshop decision regarding a baker’s refusal to bake a custom wedding cake for Charlie Craig and David Mullins, a same-sex couple engaged to be married. However, Justice Kennedy’s majority opinion, joined by conservatives Roberts, Alito, and Gorsuch, included significant language in support of LGBTIQ rights.

    Observing that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” Kennedy stated that personal “religious or philosophical objections” do not generally “allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services.” With respect to marriage equality, any such objections must be “sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

    Yet Kennedy also opined that disputes regarding LGBTIQ people’s right to receive services in the face of religious opposition also “must be resolved with tolerance, without undue disrespect to sincere religious beliefs.” And although we take some encouragement that three conservative justices signed on to the majority’s LGBTIQ supportive language, concurrences from Justices Thomas, Alito, and Gorsuch suggest that they might support sweeping exceptions to laws that protect LGBTIQ people from discrimination.

    Justice Roberts characteristically held his cards close to his vest and was the only justice other than Kennedy who merely signed on to the majority decision without expressing his views further. However, in his strongly worded dissent from the 2015 nationwide marriage equality decision, Roberts stated that the decision “creates serious questions about religious liberty.” That’s why the person who replaces Kennedy on the Court could likely have a crucial fifth vote on the issue.

    Cases raising issues similar to Craig and Mullin’s are percolating in lower courts or commissions around the country and could someday reach the high court. They include similar refusals to provide custom wedding cakes: a florist refusing to provide custom designed flower arrangements; and a stationery and calligraphy store, graphic design company, videography business and wedding venue all attempting to exempt themselves from state and local anti-discrimination laws.
    Other cases include a Hawaii bed and breakfast’s refusal to provide a room to a lesbian couple, a transgender person’s right to have a custom designed cake to celebrate their transgender birthday, and a screen printer’s refusal to make t-shirts for an LGBTQ Pride celebration—again all in violation of state or local anti-discrimination measures.

    Out of curiosity, we looked at online reviews of the Hawaii bed and breakfast involved in one of the cases. One reviewer described how one of the bedrooms “looked right out on the ocean and Koko Head.” Another reviewer described the hosts as “truly gracious, friendly and unobtrusive.” We were particularly disturbed by the idea that the two of us would not be permitted to enjoy the amazing views from the B&B that heterosexual couples could and that the hosts described as so welcoming would not welcome us.

    The marriage equality movement has enjoyed enormous success because of the personal connections LGBTIQ Americans have made with other Americans. It seems tragic that religious views or ideology would stand in the way of that human connection. We want a Supreme Court that does not endorse such exclusion and separation.

    Stuart Gaffney and John Lewis, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.