Fourteen years after invalidating state laws criminalizing gay sex, the Supreme Court will hear oral arguments on December 5 in Masterpiece Cakeshop v. Colorado Civil Rights Commission .
The case concerns a Colorado baker—Jack Phillips—who refused to bake a cake for a male couple’s wedding celebration, citing his religious objections to same-sex unions. On its face, the case represents the clash of cherished American values—freedom of religion and expression on the one hand, and a freedom from discrimination on the other. But Masterpiece Cakeshop represents more than just the collision of rights. It also reflects the limits of decriminalization as a vehicle for legal reform.
Yes, the Supreme Court’s 2003 ruling legalizing same-sex intimacy paved the way for its recent decision guaranteeing the right to same-sex marriage. Indeed, decriminalization has been a prominent vehicle for legalizing and recognizing other core rights. Over a generation, in a series of landmark cases, the Supreme Court invalidated criminal laws that prohibited birth control, abortion, and even interracial marriages, making all of this conduct legal.
But even when courts strike down criminal laws, the impulse to punish and stigmatize the conduct does not evaporate. Instead, it gets rechanneled into other, non-criminal forms of state regulation.
Although Loving v. Virginia legalized interracial marriages, in the years after the decision was announced in 1967, courts routinely terminated white women’s custody of their children when they remarried outside of the race. Likewise, though Roe v. Wade legalized abortion in 1973, many civil laws and administrative rules have emerged in Roe ’s wake to communicate the stigma and disapprobation that still attends a woman’s decision to terminate her pregnancy. As pro-choice advocates note, these civil rules and regulations may limit abortion access as forcefully as a criminal ban.
Jack Phillips’s refusal to create cakes for same-sex weddings precedes the Court’s decision legalizing same-sex marriage, but nevertheless, we might understand it as an expression of the continued disapprobation of same-sex intimacy and certainly the prospect of legalized same-sex marriages. Decriminalization and legalization does not mean complete acceptance or the absence of regulation. It simply redirects the regulatory impulse into new venues. Read more via Newsweek