US: Preserving LGBTQ Equality In The Supreme Court: No Piece of Cake

Jeffrey S. Trachtman is a partner in the New York law firm of Kramer Levin Naftalis & Frankel LLP, where he headed the pro bono program for seventeen years. He has participated in pro bono LGBTQ rights work since the 1990s, serving as co-counsel in Hernandez v. Robles, the case seeking equal marriage rights under the New York Constitution, and other cases establishing recognition under New York law for out-of-state marriages of same-sex couples. He led teams submitting amicus briefs in Dale v. Boy Scouts, Lawrence v. Texas, Hollingsworth v. Perry, U.S. v. Windsor, Obergefell v. Hodges, and Masterpiece Cakeshop v. Colorado Civil Rights Commission. Earlier, he helped the lesbian survivor of a 9/11 victim obtain her fair share of the Victims' Compensation Fund award. Jeff has received pro bono awards from the American, New York State, and New York City Bar Associations and has written commentary for The New York Times, The Washington Post, USA Today, The Nation, and other publications.

With LGBTQ rights under open attack by the Trump administration — witness the recent summary firing of the entire HIV/AIDS advisory council — many are counting on the Supreme Court to stand against the backlash and preserve recent gains. But if the recent sharply divided oral argument in the Masterpiece Cakeshop case is any indication, a majority of the Court may be ready to screw up civil rights law to forestall full LGBTQ equality.

How else to interpret the agonized wrestling with what ought to be an easy case? Colorado’s public accommodation law bars sexual orientation discrimination on the same basis as race, creed, color, sex, and other suspect classifications. That means if you own a store open to the general public, you cannot refuse to sell goods to anyone based on their membership in a protected group. Period. At least it should be period.

If Masterpiece Cakeshop owner Jack Phillips had professed a sincere religious belief that God intended people to marry only within their own race – and therefore refused to let an interracial couple order a custom wedding cake – his claimed exemption from Colorado’s civil rights law would have been laughed out of court.

Mr. Phillips’ lawyer, Kristen Waggoner, admitted as much under tough questioning by Justices Sotomayor and Kagan. She didn’t have much choice, because the Supreme Court rejected as frivolous nearly 50 years ago a claimed religiously based right to exclude African Americans from lunch counters.

But, Ms. Waggoner, argued, “race is different.” How so? Well, if Mr. Phillips turned away an interracial couple “we know that that objection would be based on who the person is, rather than what the message is.” Read more via HuffPost