Disagreement is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage

Abstract

This Article first argues that Colorado misapplied its antidiscrimination statute, a misstep partly caused by Colorado’s misinterpretation of Obergefell v. Hodges. Colorado is part of a larger national trend in which authorities are using antidiscrimination statutes as swords to punish already marginalized people (such as supporters of the conjugal understanding of marriage), rather than as shields to protect people from unjust discrimination (such as African Americans in the wake of Jim Crow and today). Second, this Article argues that support for marriage as the union of husband and wife is essentially different from opposition to interracial marriage, and that the status of African Americans is importantly different from that of Americans who identify as gay. As a result, First Amendment protections for people who act on the belief that marriage unites husband and wife differ in critical ways from hypothesized First Amendment protections for racists—and the courts can distinguish the two cases. Third and finally, this Article argues that protections for citizens who support the conjugal understanding of marriage bear much more similarity to protections for pro-life citizens. Just as protections for pro-life citizens have not been deemed “discriminatory” on the basis of sex or otherwise anti-woman because pro-life medicine is not sexist, so too should pro-conjugal marriage actions be treated as non-discriminatory because such actions are not anti-gay.

Keywords: religious liberty, free speech, First Amendment, discrimination, antidiscrimination, marriage, equality, racism, sexism, abortion