Saving Cake for Dessert: How Hearing the LGBTQ Title VII Cases First Can Inform LGBTQ Public Accommodation Cases

Issues involving the constitutional rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) community members have been argued at the United States Supreme Court four times since 2003. In the fourth case, the 2018 case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court was asked to consider the constitutional rights of the non-LGBTQ litigant. The issue in Masterpiece was whether it was a violation of the Free Speech or Free Exercise Clauses of the First Amendment to the United States Constitution to require a baker, under Colorado’s public accommodation anti-discrimination statute, to design and provide a wedding cake to a same-sex couple, when doing so went against the baker’s sincerely held religious belief. The Court held that certain conduct by members of the Colorado Civil Rights Commission during the administrative hearing of the case amounted to a violation of the Free Exercise Clause; the Court therefore decided the case in favor of the baker confined to the particular facts of the case. Many thought the next Supreme Court decision involving the LGBTQ community would involve an issue similar to Masterpiece. Indeed, when a petition of writ of certiorari was filed with the Court in October of 2018 in Klein v. Oregon Bureau of Labor and Industries, general thinking was this case was on track to settle the issue left unresolved in Masterpiece. The Kleins were also cake bakers who declined to design and create a custom wedding cake for a same-sex couple based on their sincerely held religious beliefs; again, a state public accommodation anti-discrimination statute prohibited this conduct. The Supreme Court eventually granted certiorari and vacated the judgment n Klein, sending it back to the Oregon Court of Appeals for reconsideration in light of Masterpiece. Why did the Court once again “punt” on this unsettled issue? The answer is likely related to orders the Court issued on April 22, 2019, when it granted certiorari in three cases involving LGBTQ employees. These cases will address whether gay and transgender persons fall under the protections of Title VII of the Civil Rights Act of 1964. On October 8, 2019, the Court will hear oral arguments in these cases. It is the author’s belief that the Court carefully considered the merits and issues at stake in the Title VII cases in this “rearrangement” of the order in which all of these cases (and attendant issues) would eventually be addressed. This article will first discuss the background, facts, and legal theories of the three Title VII cases scheduled for oral argument; these include a spectrum of non-conventional sexual identities. This article will then discuss Title VII of the Civil Rights Act of 1964, and contrast the objectives of anti-discrimination employment laws with anti-discrimination public accommodation laws. The article will next discuss how recent constitutional jurisprudence regarding liberty interests can inform further interpretations of Title VII. Finally, the author will conclude by noting how the Supreme Court first addressing the rights of LGBTQ prospective and current employees in the workplace should impact a future case when the Court addresses the rights of LGBTQ customers in the public arena.