Elder Law Blog

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What does the Bakery case mean for disabled persons?

Hopefully, the answer is that it means nothing. However, religion has been used to justify intolerance since the dawn of time. An article describing historic discrimination of disabled persons concludes that virtually all major religions have, at one time or another, found a reason to relegate disabled persons to second class status. In Judaism, the source for discrimination was the Pentateuch's prohibition on those with defects approaching God. For Christians, it is a distorted view, taken from Matthew 9:2,7, that disability is the result of sin. Other religions find similar historic justifications. See M. Moore, Religious Attitudes toward the Disabled (2015), at https://infidels.org/library/modern/michael_moore/disabled.html.

Thankfully, most people don't think that way in modern times. However, one would need to have his or her head in the ground to ignore American culture is more and more defined by intolerance; we must be on-guard against anyone who discriminates against disabled persons. That's where the Masterpiece Cakeshop case could become relevant. In Masterpiece Cakeshop, Ltd et al. v. Colorado Civil Rights Commission, et al, ___ U.S. ____ (2018), at https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf, the Supreme Court held that the Colorado Civil Rights Commission was wrong when it found that Masterpiece Cakeshop violated a gay couple's rights by refusing to bake a wedding cake based on the owner's religious belief that homosexuality is wrong. One reason why the Colorado Civil Rights Commission got it wrong was that it's ruling predated the Supreme Court's decision in United States v. Windsor (Obergefell), 570 U.S. 744, holding that States cannot prohibit LGBT couples from getting married. Another was the Commission's unequal enforcement of it's rule, allowing certain bakers to refuse to prepare cakes that disparaged LGBT marriage, whioe at the same time requiring that Masterpiece Cakeshop prepare a cake its owner thought offended his religious beliefs. State action must be neutral concerning religion.

The majority opinion, written by Justice Kennedy, held that "while ... religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law." However, any law preventing discrimination of protected persons must be enforced in a neutral fashion. Thus, the majority opinion, while holding for Masterpiece Cakeshop in this case, still appears to protect disabled individuals and other protected classes from discrimination in the national economy.

What would happen, though, if religious expression overrode antidiscrimination laws? The most conservative opinion, that of Justice Gorsuch, is likely where the battle lines would be drawn. Justice Gorsuch appears to hold that religious neutrality is the guide stone. He writes: "Of course, ... a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment ... it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases—and that did not happen here." The implication is that discrimination based on so-called religious beliefs might be ok, as long as everyone is allowed to discriminate the same way. In other words, would the Court have ruled for the Commission if it had allowed everyone to discriminate?

Hopefully, the Court will continue protecting classes of individuals who are the subject of historic discrimination. That protection, however, cannot be taken for granted. It is essential that everyone who cares about individuals who need extra protection remain vigilant and be involved in the political process. I don't think we want to find ourselves back in a place where the local majority can, under the guise of religious belief, discriminate against a minority protected class.

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