Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Lots of people, when they hear about the Masterpiece Cakeshop case being considered by the Supreme Court, tend to sympathize with the shop owner who believes he shouldn’t have to sell one of his wedding cakes to a same-sex couple, despite Colorado’s law banning such sexual orientation discrimination. After all, he seems like a sincere person trying to live according to his own religious beliefs. And why can’t the same sex couples of Denver buy their wedding cakes somewhere else?
However as a gay person I see fundamental problems with that approach, and most of the members of our community I’ve spoken to agree. Why? In part, of course, it’s because we will bear the brunt of the harm if the Supreme Court says it’s ok for a retail business owner to follow his own beliefs when they conflict with anti-discrimination protections. But it’s more than that. Because of our life experience, we know the real cost of living in a place where we might be refused if we walk into a business and ask for service simply because of who we are.
Like just about every gay person, I grew up struggling to accept my own nature, ashamed and afraid of rejection and humiliation. That stage of life passes for most, as it did for me. But even now, long past the difficult process of coming out, questions of how to relate to the broader world can be a part of daily life. There remains a need to make judgments – often every day – about how “out” to be in a given situation. Nearly everyone in the gay community knows what I mean. At work, you are meeting a new colleague or client. Do you reveal yourself? You’re walking down the street on a sunny day. Do you hold hands with your spouse? For most of us, even in today’s relatively enlightened times, to be gay or lesbian (or bisexual or transgender for that matter) is to go through life making decisions multiple times a day about how to relate to those we encounter, weighing the value of honesty against the risk of rejection or even violence.
That I have the option to avoid revelation makes my experience different, of course, from that of racial minorities or women who also encounter discrimination more frequently than we like to suppose. But the stress of the constant decision-making is itself wearing.
In those states that ban sexual orientation discrimination by stores and other places of public accommodation, at least we have the comfort of knowing we will not be sent away for being who we are. Sure, we may still have to deal with the hotel clerk who cannot understand why I and my husband are sharing a room or why we don’t want two beds. But we’ll get to check in, and thereafter we’ll be treated with respect. And that is a great reassurance.
That reassurance will go away, though, if the Court recognizes the right of a business owner to refuse service to us based on religious or moral disapproval of gay people. No matter how “out and proud” one may be, there is still lurking in the background the experience of struggle to get there, and there is still the daily navigation of the world choosing when or whether to be visibly who you are. And that question becomes even more fraught if there is a risk, every time we walk into a business, that we will be sent away, judged morally unworthy by the person whose goods or services we were just trying to buy — or if, as the Justice Department told the Supreme Court, businesses have a right to post signs in shop windows saying “same-sex couples not served”.
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.