Masterpiece Cake Case back in the Day: Georgetown vs. DC on Gay Student Groups

Reading Constitutional lawyer  Paul Smith’s comments on the “Wedding Cake Case” now before the Supreme Court reminded me of a long ago case in DC involving Georgetown University, which had run afoul of Washington D.C.’s human rights law. Georgetown, as a Roman Catholic institution in the Jesuit tradition, had declined to recognize the gay student group on campus as an official group, and thereby denying it certain services and benefits. (Full background here: https://law.justia.com/cases/district-of-columbia/court-of-appeals/1987/84-50-4.html). (And because they were Jesuits they documented this copiously.)

The university objected to the implication that official support would be construed as endorsement of positions that were at variance with official Catholic teaching (and thereby the foundation of the institution). This shades into the “forced speech” argument of the baker who declines to make a cake for a same-sex wedding because he believes it to be a forced endorsement of something contrary to his understanding of Christian doctrine, this then rolling into an argument about the meaning of the Constitutional guarantee of freedom of religion.

The way the Georgetown case played out is instructive. The question became whether Georgetown was in fact being forced to endorse some position on homosexuality if it was merely providing tangible benefits and services to a group. Although strongly contested (and with dissent from more than one judge), the ultimate decision was that tangible support did not equal endorsement, and a constitutional question (such as infringement of rights) was not reached. This was rather brilliantly achieved, in part, by the work of the attorneys for the gay group. They called representatives of many officially recognized student groups to testify: for instance the chess club, athletic groups, et al; and asked them the same set of questions about their connection to the university. Were they  endorsed?, what tangible benefits did they receive? how were their programs publicized?, etc. The pay dirt moment came when the head of the Jewish students’ group was asked, after  questions about their access to university facilities, support from institution etc, “And does your group hold any views at variance with the official teachings or doctrines of the Catholic Church?” Answer: “Well, we do deny the divinity of Jesus Christ.” The game was up.

Georgetown could not, under law, deny tangible services and benefits to those with whom it disagreed and whose positions were at variance to their own. Perhaps the baker in the Masterpiece case holds convictions as as sincere as Georgetown, and has a religious sensitivity as delicate. (Has he not been asked to bake wedding cakes for atheists? for observant members of non-Christian religions? an enthusiastic blasphemer with a taste for baked goods?) But that does not allow him to deny a tangible service for customers who hold views (and who incidentally might be just as fervent Christians as he is) at variance with his own. Even more so, when those customers are explicitly protected by non-discrimination statutes. Georgetown can’t discriminate against gay student groups, no matter how legitimately its religious convictions are offended, and nor can a commercial establishment.  Speech is in fact unimpaired: The Baker is a star of the anti-marriage equality movement (and certainly the Catholic Church seems to have no problem making its positions known). No one will be confused about that, I dare say.  But when it comes to wedding cakes, if he sells them to anybody, he sells them to all comers who are getting legally married. That means for Paul Smith’s marriage, or for mine.

I’ll let Paul, wonderfully, a now Georgetown Law Professor himself, have the last word.

People in this country have every right to personally disapprove of my marriage.  But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop.  They can choose who to associate with in their private lives.  But not when they open a business serving the public.  That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.

Okay, end of political tirade. Back to music and art tomorrow.

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