By Stuart Gaffney and John Lewis–
The views of the Pacific Ocean and Koko Head from the Queen Bedroom at Honolulu’s Aloha Bed and Breakfast were said to be breathtaking. But there was a catch: they were available only to heterosexual married couples, not LGBTIQ couples like us. Diane Cervelli and Taeko Bufford, a lesbian couple, learned that the hard way.
Several years ago, Cervelli and Bufford were looking for a place to stay near a friend they were coming to visit in Honolulu. As Cervelli was booking a room over the phone at Aloha B&B, the owner Phyllis Young asked if she and Bufford were lesbians. A shocked Cervelli answered truthfully. The owner then suddenly refused to rent them the room “stating she was very uncomfortable having lesbians in her house” and then hung up on Cervelli.
In ensuing legal proceedings, Young stated that “her religious belief is that same-sex relationships are ‘detestable in [her] eyes’ and ‘defile [our] land’” and that homosexuality “must be seen as an objective disorder.”
The Hawai’i Intermediate Court of Appeals rejected all of Aloha B&B’s justifications for denying Cevelli and Bufford the room, and in a victory for LGBTIQ rights the United States Supreme Court last month let that ruling stand.
The Hawai’i court’s decision was remarkably clear. It acknowledged that people are free to have their religious beliefs and generally have a right to be left alone in their homes. However, Young chose “to operate Aloha B&B from her home … for commercial purposes, [and] has opened up her home to over one hundred customers per year, charging them money for access to her home.”
As such, “she has voluntarily given up the right to be left alone.” When a person engages the public in a business enterprise to make money, that business must abide by laws prohibiting discrimination. Quoting the U.S. Supreme Court, the Hawai’i court stated that discrimination in public accommodation “deprives persons of their individual dignity” and injures their “sense of self-worth and personal integrity.”
Apparently, Aloha B&B had two single rooms without views that perhaps may have been available individually to LGBTIQ people. We can only imagine how disturbing it would be to be consigned to those second-class single rooms, while a straight couple upstairs relaxed in the “heterosexuals only” shared bedroom with its fantastic views. Indeed, the devastating personal and practical harms that second-class treatment wreak on LGBTIQ couples form the basis for the Supreme Court’s nationwide marriage equality decisions.
We hope that the Supreme Court’s declining to consider Aloha B&B’s appeal signals that it will not tolerate such overt anti-LGBTIQ discrimination as it claimed it would not in last year’s Masterpiece Cakeshop decision. But we are cautious not to infer too much about the direction the current 9-member Court may ultimately be heading in cases pertaining to such discrimination. Another wedding cake case is already on the list of cases the Court is deciding whether or not to hear.
The Court’s declining to hear the Hawai’i case must be seen in the context of the overall strategy Chief Justice John Roberts appears to be pursuing at the Court. The New York Times Supreme Court reporter Adam Liptak recently explained on The Daily podcast that Roberts likely has the power to win very conservative victories on many issues right now, but he also “wants to protect the Court’s reputation.” Roberts has “four conservative allies raring to go and his job is to kind of tap the brakes.”
Roberts appears to want to proceed somewhat slowly to “achieve conservative outcomes without doing harm to the Court’s prestige.” But Liptak believes that Roberts wants the Court to “dramatically lean right.” To say the least, what the long-term future holds for LGBTIQ equality and many other issues at the Court is uncertain.
We take heart that presidential candidates Beto O’Rourke, Elizabeth Warren, Kamala Harris and Kirsten Gillibrand have followed Pete Buttigieg’s lead in voicing interest in possible institutional changes to the Court to reverse the recent partisan Republican politicization of the Court. Institutional change at the Court may be critical to protecting the civil and constitutional rights of countless millions of Americans, not just LGBTIQ people.
We were heartened to see new polling data last month from the Public Religion Research Institute (PRRI) showing that majorities of every major religious group in the U.S. “support laws protecting LGBT people from discrimination in housing, public accommodations and the workplace.” That includes 70% or more of Catholics and Mormons, 54 % of white evangelical Protestants, and 53 % of Jehovah’s Witnesses.
PRRI has previously reported that only a slim plurality of the public believes that “wedding-based businesses” should be required to serve same-sex couples if doing so contravenes their owners’ stated religious beliefs. But despite that polling result, the public may be weighing in with its dollars. According to Newsweek, Masterpiece Cakeshop, the store that pressed the issue at the Supreme Court last year, has lost 40 percent of its business and has reduced its workforce by 60%.
We do not know how Aloha B&B will proceed in light of the Supreme Court’s actions. We hope that it will come to recognize our common humanity and remain open with a room with a view available to all.
John Lewis and Stuart Gaffney, 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.
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