By Amber Phillips with The Washington Post
In 2014, the Supreme Court decided not to hear a case about two photographers denying their services to a lesbian couple for their commitment ceremony. The decision effectively upheld a lower court's ruling that the photographers had discriminated against the couple and violated New Mexico's nondiscrimination laws for LGBT people.
On Tuesday, a Colorado appeals court unanimously decided that a baker had overstepped his legal bounds when he refused to bake a cake for a gay couple's wedding, citing religious opposition. Like New Mexico, Colorado also bans discrimination in a public place on grounds of sexual orientation.
Despite these two high-profile state cases, LGBT rights advocates say it's too soon to tell whether the so-called religious freedom debate -- which has been simmering politically ever since the Supreme Court legalized gay marriage nationwide -- is going to be the next legal battle on the LGBT frontier. But it's certainly possible.
The Supreme Court's decision legalizing gay marriage has left tension in America about how same-sex marriages are going to play out, especially in the 12 states -- often very conservative and religious -- that had previously banned them, said Cathryn Oakley, a senior legislative counsel with the Human Rights Campaign. The justices made no ruling on discrimination laws, leaving the battle up to the states.
And that tension, so far, is playing out at the state level. As the Supreme Court debated its landmark decision, state legislatures debated roughly 120 bills aimed at promoting religious freedom -- generally defined as protecting people who disagree with same-sex marriage from having to participate in gay weddings -- Oakley said. Indiana was one of the most high-profile this year.
"We're definitely watching them carefully," Oakley said of state legislatures.
Most Republican presidential candidates have swung to the right on this issue, promising to fight for religious-freedom laws. But 22 states have some kind of law on the books preventing businesses from discriminating based on sexual orientation and/or gender identity, and LGBT advocates are pushing for all such laws in all 50 states.
It's quite possible these political forces could end up clashing in the courts, setting the stage for lawsuits like the ones we've seen in Colorado and New Mexico.
That hasn't happened yet, so there's really no solid legal precedent yet on whether refusing to bake a cake for a same-sex couple is discrimination. But LGBT supporters are so far 2-for-2 -- with some pretty strong court opinions backing them up.
Here's what the judges have said in Colorado and New Mexico:
"Discrimination on the basis of one's opposition to same-sex marriage is discrimination on the basis of sexual orientation," wrote the three Colorado judges in their decision.
The New Mexico Supreme Court wrote: "When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races."
The debate is new, our sample size is small, and the only thing both sides of this potential legal battle can be assured of is that they don't know what the future holds.