DOJ Wants Protections For Cakes While Curtailing LGBT Protections

Cake for Reception for gay couples at the Abbey in W.Hollywood, Ca., July 1, 2013

For the second time in less than two months, the US Justice Department (DOJ) has bent over backward to undermine LGBT rights in pending lawsuits.

In July, the DOJ unexpectedly filed an amicus brief in Zarda v. Altitude Express, arguing that LGBT people are not protected from workplace discrimination under federal law. The case is a dispute about whether the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 encompasses discrimination against LGBT people.

Last week, the DOJ filed another brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case pending before the Supreme Court. The department defended a baker who refused to make a wedding cake for a same-sex couple, arguing that his right to free expression would be violated if the state enforced a law prohibiting discrimination based on sexual orientation against him.

These filings look like the start of a worrying pattern. The DOJ isn’t a party to either case and there was no need for it to intervene. And in Zarda, the department attacked the position of another federal agency, the Equal Employment Opportunity Commission, which had argued that Title VII does protect lesbian, gay, and bisexual workers.

In both cases, the DOJ seems to be looking for opportunities to whittle away at current interpretations of non-discrimination laws that shield LGBT people from prejudice in employment, housing, healthcare, and access to goods and services. This stance marks a sharp departure from years of civil rights enforcement that sought to expand these laws and promote equality.

These DOJ moves come at a perilous time for LGBT equality. In recent years, opponents of LGBT equality have sought religious exemptions for healthcare facilities and adoption and foster care agencies funded or licensed by the state. These laws have been enacted in several US states, including South Dakota, Alabama, and Texas.

The DOJ’s recent filings seem to display great concern for the rights of those who seek to discriminate against LGBT people, and little interest in protecting LGBT people from hate and prejudice. If the DOJ is going to be an effective champion of civil rights for all people, it needs to meaningfully stand up for LGBT equality, and do it now.