The Supreme Court heard argument yesterday in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The issue is whether a conservative Christian baker who believes that weddings are inherently religious and that same-sex marriages are religiously prohibited can be required to design and create a cake to celebrate the wedding of a same-sex couple.
The case tests the nation’s commitment to liberty and justice for all. And we aren’t doing well on the part about “for all.” Too many Americans, left and right, religious and secular, want liberty for their own side in the culture wars, but not for the other side.
The Supreme Court sometimes succumbs to these cultural divisions, but perhaps this time it will do better. In Obergefell v. Hodges, announcing the constitutional right to same-sex marriage, Justice Anthony Kennedy and the four liberals opened their opinion by declaring, “The Constitution promises liberty to all within its reach,” a liberty that allows persons “to define and express their identity.”
Masterpiece Cakeshop tests whether they meant it. Conservative believers are also within the Constitution’s reach. Does the Constitution protect their right to define and express their identity in religious terms equally with the right of same-sex couples to define and express their identity in sexual terms? It should.
The two of us, in briefs and articles, have long urged judges, legislators, and our fellow citizens to protect the right of same-sex couples to marry and also protect the right of religious dissenters not to assist with those marriages. That does not mean undercutting nondiscrimination laws in most cases of commercial goods and services. The Court can recognize a carefully defined right in the case of Jack Phillips, the owner of Masterpiece Cakeshop, and make room for both sides in the culture wars.
This is a unique event: a wedding. That makes a difference.
The wedding baker’s job, like that of the caterer, florist, photographer, and bridal shop, is to make his part of the wedding the best and most memorable it can be. He is promoting the wedding and the marriage it celebrates. Phillips, the owner of Masterpiece Cakeshop, says he cannot do that. Many bakers may feel that their responsibility ends when they deliver the cake. But Phillips feels morally responsible for what he creates and helps to celebrate.
The result is that Phillips no longer makes wedding cakes for anybody. He has surrendered 40 percent of his business and laid off half his employees. Unless the Supreme Court intervenes, this is a permanent loss of occupation. His alternative was to permanently surrender his conscience.
And to what end? To avoid the one-time offense to the same-sex couple of being turned away and being reminded of what they knew anyway: that some Americans still disapprove of their relationship. Their right to be married and to a wedding cake were never at issue. Many bakers were eager for their business, and when the story broke, the couple promptly accepted an offer of a free wedding cake.
Same-sex couples and religious dissenters make parallel claims to liberty. They each argue that a core aspect of their identity is so fundamental that it should be left to each individual, free of all nonessential regulation. Their conduct cannot be separated from their sexual orientation or their religious beliefs. Believers can no more fail to act on their understanding of God’s will than all gays and lesbians can remain celibate.
They each seek to live out their identities in public as well as in private. Same-sex couples are entitled to free access to the marketplace, but so are religious dissenters. The question is how to maximize access for both sides without requiring either to surrender core elements of their identity.
Finally, both religious dissenters and same-sex couples are condemned by many other Americans. One side sees bigotry; the other side sees sin. Blue states refuse to protect religious liberty; red states refuse to enact gay-rights laws.
Most of the commentary on the case has focused on Phillips’s free speech claim. But the Court can decide the case on narrower grounds under the Free Exercise Clause, as we urged in a friend-of-the-court brief.
The free exercise claim is inherently limited to sincere religious objectors. And, in this case, it is largely limited to weddings, a context that Phillips and many other believers understand as religious. Phillips claims no right to refuse service to gays and lesbians more generally. Any merchant who did so would have a losing case. For if merchants could discriminate anywhere and in any context, the obstacle to LGBTQ participation in the marketplace would be much greater, and the government’s interest in protecting them would be much greater. There may be religious conservatives who argue for that; Phillips and his responsible supporters do not.
Of course Phillips’s opponents exaggerate his claim as much as possible. They strain to analogize his case to Jim Crow restaurants turning away blacks, or a fundamentalist-owned bank refusing to handle women’s accounts. Courts would properly reject such ongoing denials of service — and they did in the Jim Crow era. This case involves a wedding, an event that we all hope to be the center of only once, and even if things go badly, no more than a very few times. This is not the same as a restaurant or bank — it’s a rare occasion.
Secular versus religious exceptions are unevenly enforced
The free exercise claim has been neglected because too many people have read too much into the Supreme Court’s 1990 decision in Employment Division v. Smith. The Court said that the Free Exercise Clause does not apply to laws that are “neutral and generally applicable.” So Oregon could apply its “across-the-board criminal prohibition” to ban Native Americans from using peyote as their sacrament in worship services.
Too many observers have casually assumed that all but the most outrageous laws are neutral and generally applicable — that the Free Exercise Clause now bars only laws that single out religion for uniquely unfavorable regulation, or perhaps only laws that stem from government hostility to the regulated religion. But that is not what the Court said.
The Court did not explicitly define “neutral and generally applicable law.” But it gave examples, in Smith and in one later case, Church of the Lukumi Babalu Aye v. City of Hialeah, which involved animal sacrifice. Read carefully, those cases say this: If a law permits exceptions for some secular conduct that is analogous to the regulated religious conduct, then the state must also allow a religious exception, or show a compelling reason why not.
When the state exempts the secular conduct from regulation, but not the analogous religious conduct, it is unjustly discriminating against religion. And that is what the Free Exercise Clause forbids.
The secular exceptions need not be broad, or numerous, to require a religious exception. In Smith, the Court reaffirmed an earlier decision requiring South Carolina to pay unemployment compensation to a woman who lost her job for refusing work on her Sabbath. But South Carolina had a rule that allowed unemployment compensation to be paid to workers who refused work for “good cause.” There weren’t many “good causes,” but the Court said there were “at least some.” You can refuse work in a strip club even if there are openings, for example, and collect unemployment instead; you can decline a job because of an unrealistically long commute. The state, the court concluded, had to put religious reasons for refusing work in the very small set of “good” reasons, and not in the vastly larger set of “bad” reasons.
In Lukumi, the Court struck down the city of Hialeah’s ban on religious sacrifice of animals. In this case, there were many permitted secular reasons for killing animals (food, hunting, euthanasia, etc.), and only a few forbidden reasons. But the court again decided that such tallying was not required; it said the Hialeah ordinances did not come close to constitutionality.
Florida law allowed the use of live rabbits to train racing greyhounds. Comparing that state law to the city’s ban on animal sacrifice, the Court said that the law “devalues religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.”
Four federal courts of appeals and several other state and federal courts have recognized that granting even one or a few secular exceptions makes a law less than generally applicable and requires a compelling justification for refusing religious exceptions. The most prominent of these decisions, written by then-Judge Samuel Alito in 1999, on the Court of Appeals for the Third Circuit, held that a Muslim policeman who wore a beard as a religious duty could challenge the Newark Police Department’s ban on facial hair. The department had granted a medical exception for officers with a skin condition aggravated by shaving. That single exception, the court said, made the law non-generally applicable, triggering strict constitutional scrutiny; granting the medical exception but denying the religious exception “made a value judgment in favor of secular motivations, but not religious motivations.”
What the courts said when bakers refused to write anti-gay messages on their cakes
How does all this apply to Masterpiece Cakeshop? Colorado’s public accommodations law prohibits businesses from discriminating on the basis of sexual orientation, religion, or other traditional civil rights categories. On its face it has no secular exceptions. But it has been unevenly enforced in practice.
The Colorado Court of Appeals ruled that Phillips discriminated on the basis of sexual orientation by refusing to create a cake celebrating a same-sex marriage — because that celebratory message is closely associated with gays and lesbians.. But it explicitly approved three cases holding that other bakers did not discriminate on the basis of religion when they refused to create cakes with a quotation from Leviticus condemning homosexuality — a message obviously associated with a certain set of religious believers. The Colorado regulations are clear that religious discrimination includes not just discrimination based on affiliation, but discrimination based on a particular religious belief—exactly what the other bakers did.
The appeals court said many more inconsistent things about the two sets of cases. It let the protected bakers take responsibility for the message their cakes would send, and refuse to send that message. By contrast, it denied that Phillips’s wedding cake would send any message, and then said that if his cake did send a message, it would be the customers’ message, not the baker’s. It said that the protected baker’s willingness to make other cakes with “Christian themes” for other Christian customers was exonerating, but that Phillips’s willingness to make anything but a wedding cake for his gay and lesbian customers was irrelevant.
Refusing to create a cake with a message associated with a protected class of customers—whether same-sex couples or conservative Christians—either discriminates against that class or it does not. The message on a cake is either the baker’s message or the customer’s message, or perhaps the message of both. But the answers to these questions cannot vary depending on whether the state agrees with the message, which is how it worked out in the Colorado courts.
Protecting the bakers who refused to make the Leviticus cakes undermines the state’s interest in eliminating religious discrimination at least as much as protecting Phillips would undermine the state’s interest in eliminating sexual-orientation discrimination.
The state has tried to distinguish the two sets of bakers by saying that the protected bakers would not make the Leviticus cake for anybody. The state court never made that argument. The protected bakers were in the business of making custom cakes with messages and designs requested by customers, and they refused the Leviticus cake because they disapproved a message strongly associated with a particular religious view. Phillips is in the same business, and refused for the same reason (substituting sexual orientation for religion). And suppose Phillips says he wouldn’t make a cake with two grooms for anybody. The state’s answers at yesterday’s oral argument clearly implied that Colorado would say that’s sexual orientation discrimination.
We should not have to go through this detailed analysis to protect a simple act of conscience. Same-sex couples should be free to marry, with fancy weddings and wedding cakes, and conscientious objectors should not be required to assist. But under the Supreme Court’s interpretation, the Constitution protects religious conscience only against laws that fail its test of general applicability. Fortunately for Jack Phillips, the Colorado law as it was administered fails that test.
Thomas C. Berg is Professor of Constitutional Law at University of St. Thomas (Minnesota).
Douglas Laycock is Professor of Constitutional Law at the University of Virginia.
They have long advocated for protecting same-sex marriage and for protecting religious dissenters.
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Vox · by Thomas C. Berg · December 6, 2017