Supreme Court Declines To Consider Whether a Bed and Breakfast Can Discriminate Against Gay Couples

The Supreme Court today declined to hear a case about discrimination against a gay couple at a bed and breakfast in Hawaii, leaving in place a state court ruling against the business owner.

The rejection highlights how narrowly the justices threaded the legal needle when they ruled in favor of Masterpiece Bakeshop in Colorado. In that case, the Supreme Court determed that Colorado had shown religious animus against the baker when they punished him for refusing to sell a wedding cake to a gay couple.

In the case rejected today, the operator of the Aloha Bed & Breakfast in Honolulu was found to be in violation of the state’s antidiscrimination laws on public accommodations after refusing to rent a room to a lesbian couple in 2007. The owner resisted Hawaii’s public accommodation laws on the basis of the free exercise of her religion under the First Amendment. The state ruled against her, and the Supreme Court is declining to intervene.

This should not surprise anybody who’s closely followed these cases. Jack Phillips, the owner of Masterpiece Bakeshop, was clear that he wasn’t refusing to sell cakes to gay people or to gay couples. He argued that his religious opposition to gay marriage recognition meant that he shouldn’t have to make a cake that would be seen as celebrating same-sex marriage.

Reasonable people can debate whether baking a cake counts as a form of expression. Renting a room or a home is not seen by most as requiring a personal or moral approval of the renting party’s romantic relationships.

When the Supreme Court ruled 7-2 in favor of Phillips’ bakery last year, some people read the ruling as a broad win for religious freedom. It was not. The majority ruled that Colorado’s Civil Rights Commission had not fairly or neutrally applied Colorado’s discrimination laws, and that members had openly expressed clear animosity and contempt toward Phillips’ religious beliefs in a case where they were obligated to be impartial.

Courts have regularly ruled that neutrally applied antidiscrimination laws can prohibit businesses from turning away people on the basis of being a member of a protected class, regardless of what their faith tells them. Even a Religious Freedom Restoration Act (RFRA) protection on the state or federal level has limits.

When the Supreme Court justices heard the Masterpiece Bakeshop arguments, they publicly debated what counted as speech or expression in the producing of a consumer good and whether forcing Phillips to bake a cake was compelling him to engage in speech, but they didn’t ultimately decide the case on that issue.

All of that is to say, the court still hasn’t decided whether a baker is expressing support for gay marriage by baking a gay couple a wedding cake. But a person running a bed and breakfast is not expressing support by renting them a room.