• Wedding Cakes, Abortion, and the Supreme Court

    by Lucy Haggard
    on Jun 4th, 2018

Monday, June 4, was a big day for the U.S. Supreme Court, with two major decisions released on cases that involved the LGBTQ+ community as well as abortion access for immigrants. Neither of the decisions were particularly revolutionary, but they both left open the opportunity – some would even say the inevitability - for future developments in these issues.

Masterpiece Cakeshop and LGBTQ discrimination

The first ruling was long-awaited by those on both sides of the argument. Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission centered around the Lakewood, Colorado cake baker Jack Phillips, who refused to make a wedding cake for prospective husbands Charlie Craig and Dave Mullins in 2012. In the Colorado courts, the case revolved around whether or not Phillips had the right to refuse the husbands their wedding cake, on the grounds that it went against his religious beliefs and First Amendment rights. Early decisions ruled in the husbands’ favor, but Phillips kept appealing. Once the Colorado Supreme Court refused to hear the case, it made its way up to the U.S. Supreme Court.

It's worth clarifying at this point that this federal version of the case didn’t address whether or not the baker could discriminate against the couple. Rather, it focused on the process by which the Colorado Civil Rights Commission initially decided the case. Phillips argued to the Supreme Court that the CCRC had violated his right to a neutral, tolerant consideration of his religion within the context of the case. He claimed that on-record comments by a couple members of the commission were inappropriate and disrespectful of his beliefs, and that the commission was biased against religious beliefs, thus not exercising neutral decision-making.

In the end, SCOTUS ruled 7-2, with Justices Ginsberg and Sotomayor dissenting. Justice Anthony Kennedy – known for both his advocacy of religious freedom and his defense of LGBTQ+ rights – delivered the main opinion in a notably middle-of-the-road manner. He focused specifically on the procedural notes of the case’s progress, siding with Phillips’ claim that the CCRC exhibited “clear and impermissible hostility” against his religion.

Kennedy also wrote that Colorado’s anti-discrimination laws “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” In many places, he implied that had there not been anti-religion comments made by commission members, the case would have overwhelmingly been in favor of the customers of the cake shop.

While the ruling is certainly disappointing to those hoping for a definitive line between personal expression and discrimination, it’s not as harsh as it looks. It leaves the door open for future development of this case, or similar ones, to be ruled in favor of those in protected classes, including racial minorities, LGBTQ people, and more. Kennedy wrote that to truly figure out the line between religious freedom and anti-discrimination, cases like this require “further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Undocumented minors and access to abortion

An undocumented young pregnant woman, who’s referred to as Jane Doe throughout the case, was placed in a federally funded Office of Refugee Resettlement shelter once crossing the border in Texas last October. A medical examination at the facility revealed she was eight weeks pregnant. She wanted to terminate the pregnancy, but a new ORR policy prohibits those in their care from aiding people in receiving abortions unless there’s a specific exception from their Director.

Doe was appointed a guardian ad litem by the court, which is someone who looks after the interests of a child when there’s not another guardian, like a parent or family member, around. Rochelle Garza, the guardian, sued on behalf of Doe and other pregnant unaccompanied minors in a class action filing with the help of lawyers from the American Civil Liberties Union. She initially succeeded in receiving a restraining order on the ORR’s abortion policy. This allowed Doe to attend abortion counseling – mandated at least 24 hours in advance in Texas and many other states, but not Colorado.

Some back-and-forth ensued between courts of different levels, but a final restraining order was granted on ORR’s policy, and Doe was able to receive the abortion in the early morning hours of the following day. This frustrated the ORR, which appealed to the Supreme Court requesting review of the entire process, from the lower courts’ restraining orders to Doe’s lawyers going ahead with Doe’s abortion so soon.

In an unsigned opinion with no noted dissenters, SCOTUS ruled that the whole ordeal was moot and vacated the lower courts’ ruling. This isn’t an uncommon route for the court when the circumstance of a case resolves itself before there’s a final decision. Because Doe couldn’t undo her abortion, the entire premise of the case became irrelevant.

The Trump administration had also sought to punish the ACLU lawyers in the case through this appeal. That proposition was struck down, as SCOTUS stated the lawyers acted ethically by allowing Doe to get an abortion as soon as possible. The ORR had argued that this speedy process didn’t allow for legal dispute over the final restraining order. SCOTUS countered that due to “the unique circumstances of this case and the balance of equities” in consideration, Doe’s lawyers were not unethical either towards the court or towards their client.

Garza, the court-appointed guardian for Doe, and her class action lawsuit with the ACLU lawyers against ORR’s policy still remain active and undecided. On the one hand, due to SCOTUS vacating the lower court’s restraining order on the ORR policy, Doe’s circumstances won’t be considered as precedent when deciding the class action suit. On the other hand, the suit still has standing, and if ruled in favor of Garza, would significantly improve the access to abortion for many undocumented people in the U.S.

So… what now?

It’s uncertain what will happen in either the class action suit or that of the cake shop and gay couple. For the latter, it’s very likely that it will come back into play in the lower courts somehow, in an effort to distinguish a line between freedom of speech and anti-discrimination. For Garza’s case, it continues to be heard in court, though it’s uncertain as to when. The continuation of both cases should prove interesting, especially after today’s unremarkable SCOTUS decisions.

Author Lucy Haggard Lucy Haggard is the Development Event Assistant at Women's Health, a summer internship hosted through the Public Interest Internship Experience program. She studies Human and Cultural Geography at the University of Colorado Boulder, and participates in the CU Independent and Radio 1190 on campus during the school year.

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