by Jennifer Finney Boylan
The Supreme Court has ruled on the Masterpiece Cake case — and on the surface, it would appear to be a loss for L.G.B.T.Q. Americans. The justices ruled 7-2 that the Colorado Civil Rights Commission violated the religious freedom of a baker, Jack Phillips, when it sanctioned him for refusing to make a wedding cake for a gay couple, Charlie Craig and David Mullins, in 2012.
“The commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Justice Anthony Kennedy wrote for the majority.
In spite of this, the ruling is relatively narrow. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” Justice Kennedy wrote, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
In other words, while Masterpiece is a loss for L.G.B.T.Q. people, the question of how to balance religious freedom with the rights of queer people remains unresolved, and will most likely continue to be explored and debated in the future, and by the Supreme Court not least.
And this, more than the case itself, is the greater loss for L.G.B.T.Q. people. We lose when our rights are considered debatable. Even if the Supreme Court had ruled unanimously against the baker, in fact, L.G.B.T.Q. Americans would still be considered second-class citizens in many aspects of civic life.
We can still be legally fired or denied housing in 28 states. More than 300 anti-L.G.B.T.Q. bills have been introduced in the states in the past three years. In Oklahoma, gay and lesbian couples can be denied the ability to adopt children.
Masterpiece wouldn’t have changed any of that, just as Obergefell v. Hodges didn’t change any of that, just as rescinding the military’s “Don’t Ask Don’t Tell” policy didn’t.
The only thing that will truly enshrine equal protection under the law for all Americans, including L.G.B.T.Q. people, is an amendment to the Constitution.
Call it the Dignity Amendment. The text might read: “Equality of rights under the law shall not be abridged by the United States or by any state on account of sex, sexual orientation or gender identity.” It’s the brainchild of Sarah Kate Ellis, the president and chief executive of GLAAD ( where I served as co-chairwoman of the board of directors for four years.)
The Dignity Amendment would guarantee that L.G.B.T.Q. Americans are treated like all other Americans. It would send the message that we are part of the fabric of this nation. It would guarantee that our rights as taxpayers and as participants in the civic life of the country cannot be abridged because of our private lives.
It would make it clear, once and for all, that the “We” in “We the people” includes everybody.
What would it not do? It would not turn you gay. It would not demand that bathrooms be coed. It would not elide the differences between men and women. It would not eliminate child support. It would not force states to pay for abortion.
If some of these fears sound familiar (if ridiculous), it’s because they’re among the canards that conservatives have inflicted upon us regarding the still-unratified Equal Rights Amendment over the past 40-plus years. And yet, in spite of this barrage of misinformation, the E.R.A. — once given up for dead after it stalled three states short of ratification in 1977 — has continued to make progress. Last year, Nevada ratified it. Last month, Illinois did the same. That leaves one more state to go — although the most recent time limit on the amendment expired in 1982. If the E.R.A. were to pass one more state, a legal showdown would ensue. (And not without good reason: The E.R.A. was unique in having a time limit imposed. The 27th Amendment, in fact, was passed after Michigan ratified it in 1992, over 200 years after James Madison proposed it.)
Those of us in L.G.B.T.Q. advocacy have watched with interest as the E.R.A., presumed dead, has been revivified by a changing culture. The #MeToo movement is part of it. The president is surely another. Critics can say that prevention of discrimination on the basis of sex is already settled law, addressed by, among other statutes, the 14th Amendment. But plenty of women look at Harvey Weinstein, and Donald Trump, and wonder, fairly enough, how we can be considered equals in this country when men like this hold sway over our lives.
L.G.B.T.Q. people would be helped by the passage of the Equal Rights Amendment, to be sure, just as we would be helped by the passage of the Equality Act, a proposed addendum to the 1964 Civil Rights Act that provides explicit protections against discrimination on the basis of gender identity or sexual orientation.
But neither of these provides the kind of explicit and incontrovertible affirmation that a constitutional amendment would enshrine. Some things demand the most dramatic and historic actions. I suggest that setting the humanity of L.G.B.T.Q. Americans into stone requires nothing less.
Americans look back on their short history sometimes with wonder and dismay. How is it possible that the authors of our Constitution, so brilliant in so many ways, were also capable of counting a black inhabitant of the country as only three-fifths of a person? Was it really just over 150 years ago that we fought a war on the question of slavery? Was it really less than 100 years ago that women got the right to vote?
I believe that future generations will look back at our reluctance to provide equal protection under the law for queer Americans with a similar sense of astonishment. It won’t take long, either; 20 percent of millennials, according to a GLAAD study, identify as L.G.B.T.Q., and 63 percent consider themselves straight allies. The day is coming when to describe yourself as queer in this country will be considered just one more way to be an American. It will be unexceptional, just as it always ought to have been.
In the meantime, Masterpiece is a defeat — a qualified defeat, to be sure, and a defeat that may well be revisited. But a bigger defeat is having to have one’s rights as a citizen challenged, discussed and put forth for debate in the first place. This is not just a matter of dignity. It’s a matter of common sense. We turn to the Constitution for deliverance, and for justice.
Jennifer Finney Boylan (@JennyBoylan), a contributing opinion writer, is a professor of English at Barnard College of Columbia University and the author of the novel “Long Black Veil.”