Jeff Taylor

The newly engaged couple Kasey Mayfield and Brianna May did not expect to ignite an online backlash when they shared on Facebook a recent email exchange that Mayfield had with an employee at a North Carolina wedding venue.

In the exchange, Mayfield mentions potential wedding dates, the estimated number of guests and the “other bride.” In response, the venue informed her that The Warehouse on Ivy in Winston-Salem does “not host same sex marriage ceremonies.”

“If you’re wondering how wedding planning is going…thanks so much to The Warehouse on Ivy for letting us know we’re not welcome,” May captioned the photo of the exchange, which had over 1,400 shares on Tuesday.

“I was kind of speechless,” Mayfield said of reading the email. “I just had to like hand the phone over to Bri when I got it.”

“I had hoped that this wouldn’t happen in North Carolina, but I thought there was a chance it may. I didn’t expect it from a venue in Winston,” added Mayfield, 25, who has lived in the area for the past 10 years. May, 29, was born and raised in Winston-Salem.

The couple met on the dating app Bumble over two years ago and got engaged last month while listening to their favorite album, “Golden Hour” by Kacey Musgraves. They had only just started planning for their wedding, which they hope to hold in the fall of 2022. Mayfield said she and May first heard of The Warehouse on Ivy through the online wedding resource Wedding Wire.https://www.facebook.com/v2.10/plugins/post.php?app_id=&channel=https%3A%2F%2Fstaticxx.facebook.com%2Fx%2Fconnect%2Fxd_arbiter%2F%3Fversion%3D46%23cb%3Df3dc6d7212d2b2a%26domain%3Dwww.nbcnews.com%26origin%3Dhttps%253A%252F%252Fwww.nbcnews.com%252Ff330e4902461704%26relation%3Dparent.parent&container_width=480&href=https%3A%2F%2Fwww.facebook.com%2Fbrianna.may.395%2Fposts%2F10220437554034235&locale=en_US&sdk=joey&show_text=true&width=auto

‘Christian values’

The venue did not tell May and Mayfield why it does not host same-sex marriage ceremonies. However, in an email exchange with NBC News, the same email account, which lists the sender’s name as Daniel Stanley, confirmed the couple’s assumptions surrounding the decision.

“We will allow anyone of any color, race, religion or belief to use our venue at any given time,” the email stated. “Although we love and respect everyone in our community, their own decision making and beliefs, we also strongly believe in our Christian values.”

Multiple attempts to confirm that the statement was sent by Stanley, whose LinkedIn account says he’s the venue’s director, were ignored, as were questions surrounding the venue’s ownership.

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According to North Carolina incorporation filings, The Warehouse on Ivy is owned by STC Properties of Forsyth County and lists Thomas Collins and Scott Sechler as the company’s managers. Reporting from The Winston-Salem Monthly, which features interviews with the Sechler family about the recently opened venue, confirms Sechler’s ownership.

Multiple attempts to reach Sechler and Collins were unsuccessful, and by Monday the venue had taken down its Facebook and Instagram pages.

‘Free to discriminate’

The issue of where anti-discrimination laws begin and First Amendment and religious liberty rights end remains something of an open question legally — and much of it depends on state law.

In the high-profile 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court narrowly ruled in favor of Christian baker Jack Phillips, who refused to make a cake for a same-sex wedding. But instead of answering the fundamental question of whether it is legal to discriminate based on sexual orientation, the high court simply found that Phillips’ concerns weren’t fairly considered by Colorado officials.

In a similar case, the Washington Supreme Court ruled in 2019 that Arlene Stutzman, owner of Arlene’s Flowers, was in violation of that state’s anti-discrimination law for refusing to provide flowers for a gay couple’s wedding ceremony. The shop has appealed, for the second time, to the Supreme Court. Its petition is pending.

Unlike Colorado and Washington state, however, North Carolina — along with 22 other states across the U.S. — does not have a law explicitly banning discrimination based on sexual orientation and gender identity in public accommodations, according to Movement Advancement Project, an LGBTQ think tank. And until this month, the state had a moratorium on cities passing their own nondiscrimination protections.

With no explicit state protections and no federal legislation banning anti-LGBTQ discrimination in public accommodations, a state like North Carolina leaves little room for legal recourse, according to Paul Smith, a Georgetown Law School professor who argued the landmark 2003 LGBTQ rights case Lawrence v. Texas before the Supreme Court.

“The only shot would seem to be finding a state law that prohibits sex discrimination in the provision of goods and services and then convincing North Carolina to read ‘sex discrimination’ in its law as broadly as the majority did in Bostock [v. Clayton County, Georgia],” Smith said, referring to the landmark ruling this year that found that Title VII of the Civil Rights Act of 1964 offered workplace discrimination protections on the basis of sexual orientation and gender identity.

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Rick Su, a law professor at the University of North Carolina, was even less optimistic when it comes to the state.

“North Carolina has no state law on public accommodations not related to disabilities and no anti-discrimination laws protecting LGBT identity,” Su told NBC News. “Given there is no federal law protecting LGBT [people] either, this would mean that the wedding venue is free to discriminate.”

There are, however, two things that could potentially change this in the near future: the Equality Act and Fulton v. City of Philadelphia. The former is proposed federal legislation that would add LGBTQ protections to existing federal civil rights law. It passed in the House last year, and President-elect Joe Biden has said he would like to sign it within his first 100 days in office.

The latter is a case before the Supreme Court that will determine whether a government-funded, religiously affiliated child welfare agency can circumvent local nondiscrimination laws and refuse to work with LGBTQ people. If the justices issue a broad ruling in the case, it could have far-reaching implications, according to legal experts.

A silver lining

Mayfield said she and May “aren’t considering legal action at this time,” but she added that they are “urging our friends to email legislators to help try and pass discrimination laws for LGBTQ people.”

In addition to advocating for legislative action, the couple also wants to get the word out to the local LGBTQ community about The Warehouse on Ivy’s policies.

“We have a lot of gay friends in our circle, so I wanted to hopefully save people the time and, kind of, hurt and energy, from getting rejected based on our sexual orientation,” May said of their decision to go public about the ordeal.

In addition to receiving “kind and encouraging words” in response to her now-viral Facebook post, May said she’s also received some helpful wedding tips and offers.

“We’ve gotten so many wonderful recommendations for other vendors and venues, and we’ve had people offering services,” she said.

Summing up the experience — from the venue’s rejection to the viral social media response to the messages of support — Mayfield said it’s all been “definitely overwhelming, but in a good way.”

President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court to succeed Justice Ruth Bader Ginsburg last month ignited fears of an increasingly conservative court rolling back recently gained LGBTQ rights.

Fuel was then added to the fire on Monday when two of the court’s conservative justices, Clarence Thomas and Samuel Alito, mounted a fresh attack on the landmark 2015 decision Obergefell v. Hodges, which made same-sex marriage legal across the United States.

“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix,” Thomas, joined by Alito, wrote. “Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

“The Court could significantly water down what marriage means for LGBTQ couples across the nation to what the late, great Justice Ginsburg, called ‘skim milk marriage.'”

HUMAN RIGHTS CAMPAIGN PRESIDENT ALPHONSO DAVID

The four-page statement followed the Supreme Court’s rejection of an appeal from Kim Davis, a former Kentucky county clerk who made headlines after she denied marriage licenses to same-sex couples following the 2015 Obergefell decision. Davis, a Christian, had cited her religious beliefs, and her lawyers argued to the Supreme Court that her case came down to “whether the law forces an all-or-nothing choice between same-sex marriage on the one hand and religious liberty on the other.”

While the Court ruled unanimously against hearing her appeal on technical grounds, Thomas and Alito used the opportunity to issue a blistering critique of Obergefell, stating that Davis “may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”

Advocacy groups were quick to hit back at the two conservative justices, with the Human Rights Campaign, the country’s largest gay rights group, saying in a statement that Thomas and Alito had “renewed their war on LGBTQ rights and marriage equality, as the court hangs in the balance.”

During a call with reporters Monday afternoon hosted by the campaign, Jim Obergefell, the plaintiff in the 2015 case, called the remarks by Thomas and Alito “deeply disturbing and upsetting.”

“They signal that they are still willing to roll back progress, to rip rights away from LGBTQ+ people, and that if given the chance they would work to overturn the right to marriage that I and so many activists and advocates have fought for,” Obergefell said. “Justices Thomas and Alito seem to imply that freedom of religion carries more weight, is more important than all other rights.”

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On that same call, HRC President Alphonso David, a civil rights lawyer, said the justices’ statement “made clear that the war on marriage equality against the lives of same-sex couples is alive and well.”

“This outlook and the language in the Thomas and Alito statement is doubly troubling, as the court could soon be reshaped in a more dangerous anti-LGBTQ image if Amy Coney Barrett is confirmed by the United States Senate,” David said. “The Court could significantly water down what marriage means for LGBTQ couples across the nation to what the late, great Justice Ginsburg, called ‘skim milk marriage.’”

The Human Rights Campaign and other LGBTQ rights groups have been sounding the alarm over Barrett since before she was nominated on Sept. 26. The day before, the campaign warned in a statement that Barrett “would work to dismantle all that Ruth Bader Ginsburg fought for during her extraordinary career.”

The campaign included a laundry list of concerns, including Barrett’s defense of the justices who dissented in Obergefell v. Hodges, as well as her arguing, during a lecture at Jacksonville University in Florida, that reading Title IX protections to include transgender people is a “strain on the text,” and, in that same lecture, referring to trans women as “physiological males.”

That same day, Sept. 25, Lambda Legal came out against the Barrett nomination, calling it “rushed” in a statement. The organization also noted Barrett had once written a law review article arguing Supreme Court cases could be broken down into two categories: “precedent and superprecedent,” with the second representing decisions that are harder to overturn. It added that when asked by Sen. Sheldon Whitehouse, D-R.I., during her 2017 nomination hearing for the 7th U.S. Circuit Court of Appeals, Barrett wouldn’t answer in which category she would place the issue of marriage equality, or any other particular cases, for that matter.

However, not everyone in the LGBTQ community is so concerned. Brad Polumbo, a journalist who is gay, recently wrote an article for The Washington Examiner in which he argued that concerns regarding Barrett are overblown. He recalled the upset within the LGBTQ community over Justice Neil Gorsuch’s nomination, and — pointing to Gorsuch’s vote in favor of gay and transgender rights in June in Bostock v. Clayton County, Georgia — argued that those fears have proven unfounded.

Polumbo also said he believes LGBTQ rights should be gained through Congress and not through the courts.

“I don’t think that a judge has to always rule in favor of the best outcome for LGBT interests,” Polumbo told NBC News. “They have to rule with what the law says … and that’s what Amy Coney Barrett says specifically she will do.”

“She says she will not impose her personal beliefs on the law, and she will rule for the law as it is written, and I believe her because she has a track record of doing that, as do many of these conservative justices,” he added.

How safe is gay marriage?

When it comes to the Obergefell v. Hodges decision, Paul Smith, a professor at Georgetown Law School, said, “There are a number of reasons why even a very conservative court is probably not going to overrule it.”

Smith successfully argued the landmark 2003 Supreme Court case Lawrence v. Texas, which decriminalized same-sex sexual activity among consenting adults, striking down sodomy laws in Texas and a dozen other states. He said he’s confident we will not see a return of such laws, as even those not as explicitly anti-gay as the one at the center of Lawrence v. Texas “were just a way of regulating same-sex conduct,” which he sees both the high court and public opinion as having advanced beyond.

Smith, who said the “precedent versus superprecedent” argument is a solely political one with no real legal basis, was also quick to note, regarding the Obergefell decision, that the many same-sex married couples across the U.S. cannot be unmarried. There are currently more than a half million households made up of same-sex married couples in the country, according to U.S. Census Bureau data released last month. To go back on gay marriage now, Smith said, would cause such a “political cataclysm that the court would be very reluctant to take on such an unpopular position.”

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Jon Gould, a professor at Arizona State University’s School of Criminology and Criminal Justice, agrees. He noted that polling data shows public support for same-sex marriage has continued to rise, and that the Supreme Court’s decisions on social issues tend to hew closely to public opinion.

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“As much as we say, ‘They don’t consider politics,’ of course the justices consider where the public is on particular issues,” Gould said. “The polling has just moved so fast and this issue, there is no way they’re going back from that.”

According to Gallup’s annual Values and Beliefs poll, conducted in May, 67 percent of Americans said same-sex marriage should be recognized by law as valid, matching an all-time high. When Gallup first polled Americans on the topic of gay marriage, in 1996, only 27 percent said they were in favor of it.

Gould also noted there was an increase in support for workplace protections for LGBTQ people, which the court recently ruled in favor of in June’s Bostock decision, determining that Title VII of the Civil Rights Act of 1964 protects against workplace discrimination based on sexual orientation and gender identity.

Many were surprised when Gorsuch, a Trump appointee, voted in favor of those protections, and in fact wrote the decision.

Gould argued that many “misread Gorsuch,” whom he called “not your traditional social conservative” but rather a “libertarian conservative,” hence his decision on that case coming through a “plain reading of a statute rather than a large constitutional exercise.”

Barrett, Gould said, “is a social conservative as well as a legal conservative,” adding that he thinks Republicans “will get exactly what they bargained on with this nominee.”

LGBTQ equality vs. religious freedom

But if anti-gay laws are unlikely to make a comeback, where should gay rights activists focus their attention? The answer to that lies, at least in part, in the still fluid, and at times blurry, line between religious freedom and LGBTQ civil rights, according to Gould and Smith. They said they believe the main threat to LGBTQ rights under a more conservative court lies in religious exemptions, which Gould said could “blow a hole” in constitutional jurisprudence.

“That’s where her nomination is going to be a tipping point potentially, because there’s nothing about her that suggests that she will do anything other than advance that argument,” Gould said of Barrett.

As Lambda Legal noted in its September statement, Barrett has been a paid speaker at legal conferences hosted by the Alliance Defending Freedom. The conservative legal group, which has a long track record of opposing gay and transgender rights, has been deemed an anti-LGBTQ “hate group” by the Southern Policy Law Center, though the organization contests that characterization. Among its past cases is 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court narrowly ruled in favor of Jack Phillips, an ADF client and a Christian baker who refused to make a wedding cake for a same-sex couple.

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Religious exemption, Gould warned, allows “an activist court to expand the argument to more and more things that don’t seem like they are about artistic expression.”

“The very fact that that argument exists when it comes to someone’s immutable sexual orientation makes no sense,” he said.

He added that the same argument could have been applied earlier in America’s history by white supremacists in regards to interracial marriage.

Gould also said the religious freedom argument didn’t gain traction in the Davis case because “she was performing an entirely governmental function,” without any “potential First Amendment artistic argument to employ.”

Future of the high court

If confirmed by Election Day, Barrett would get to weigh in on Fulton v. City of Philadelphia, a case involving whether private child welfare agencies that receive taxpayer money can refuse to work with same-sex couples. How she rules there, and what arguments she uses to arrive at her decision, would offer insights into what can be expected during her time on the court, which could be decades as she is only 48.

“I would assume that she is going to be on the aggressive exemption side of those kinds of cases,” Smith said.

And while Smith posited that there might be some cause for hope on the part of LGBTQ advocates due to Gorsuch’s Bostock decision, he believes Gorsuch will likely try to distinguish between employment discrimination and issues like access to bathrooms and locker rooms, as well as participation in athletics, being decided by sex assigned at birth instead of gender identity.

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Transgender rights are less well established by legal precedent, which means they are likely to be at a bigger risk of failing to advance than gay rights, Gould argued.

“The whole concept of rights are socially constructed by what people think, and the justices are following that,” Gould said. “We’re not at the point right now where trans rights are there. If we ever get to that point, you may see the court expand the rights, but we’re not, and so I just don’t see them going out on a limb for that.”

It is worth noting that the Supreme Court did rule in favor of trans worker rights, and that polling shows most Americans are opposed to discrimination in employment on the basis of sexual orientation and gender identity, although there is more opposition when it comes to sexual orientation than gender identity. Polls have additionally found a growing level of support for trans rights.

Polling also shows most Americans support allowing transgender people to serve in the military. However, bathroom access based on gender identity has been a harder sell, with a slim majority opposing such policies.

The reality of a more conservative Supreme Court has led to talk of packing the court, or adding justices, if Democrats gain control of the White House and Senate. It is an idea gaining in popularity among the left in the wake of Barrett’s nomination just weeks before the 2020 election, while President Barack Obama’s 2016 nominee, Merrick Garland, never received a Senate vote, despite being nominated 10 months before that year’s presidential election.

Both Gould and Smith suggested adding justices could be a real possibility, if Biden wins the election and the Democrats take full control of Congress. “You can put this all under the heading of: You reap what you sow,” Gould said.

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Many in the LGBTQ community also fear what a Barrett nomination could mean for the Affordable Care Act (ACA), with a challenge to the landmark Obama-era legislation also set to come before the court in November.

The ACA has been especially important to the LGBTQ community, as it prohibits discrimination against LGBTQ people in health care and insurance coverage. Discrimination within the health care system has exacerbated disparities commonly found among minority groups, who face increased barriers to care.

Smith said if the court rules the ACA unconstitutional, he sees the odds of Democrats looking to add justices to the high court increasing to over 50/50.

Even without the possibility of court packing, Gould said he believes that even if religious exemptions are expanded at an aggressive rate, they “will exist for a couple generations, if that, and then a future court will close” the exemptions.

That, however, does not assuage the fears of today’s LGBTQ advocates, who fear the imminent reversal or watering down of recently won rights.