Baking Up a StormYonoson Rosenblum
Masterpiece Cakeshop dodged the bullet this time
ustice Clarence Thomas best summed up the impact of last week's long-awaited decision in Masterpiece Cakeshop vs. Colorado Civil Rights Commission (CCRC), in which the Court held that the evident hostility of the CCRC to the religious views of the store's owner, Jack Phillips, impermissibly tainted the Commission's proceedings. (The CCRC ruled that a bakery owner's refusal to make a wedding cake for a same-gender ceremony because of his religious convictions violated Colorado's anti-discrimination law.) "Because the Court's decision vindicates Phillips' right to free exercise, it seems that religious liberty has lived to fight another day," wrote Thomas in his concurring opinion. In short, the cause of religious liberty dodged the bullet this time.
But Thomas predicted that the very narrow nature of the decision left unresolved the inevitable conflict between Obergefell (making recognition of same gender marriage mandatory in all states) and the religious liberty of "individuals... confronted with demands to participate in and endorse civil marriages between same-[gender] couples."
The Masterpiece ruling offers little in the way of solace to other vendors in Phillips's situation, and likely not even to Phillips himself if he is requested again to bake a wedding cake for a same-gender ceremony. Pundit Ben Shapiro was not far off in describing the Court's holding thusly: "Supreme Court: Be Polite When You Violate Others' Rights."
Justice Kennedy stressed that the rule of Employment Division vs. Smith (1990) — which states that "valid and neutral statutes of general applicability" may be enforced regardless of any infringement on religious observance — applies in full force to anti-discrimination statutes. Smith overturned a long line of Supreme Court cases, which in effect carved out a freedom of religion exemption when the application of a neutral statute has a negative impact on the ability of particular citizens to fulfil their religious obligations or burdens the performance of such obligations.
And by repeatedly emphasizing that the decision was limited to the particular circumstances of the case — i.e., what Justice Kennedy found to be egregious anti-religious bias in the deliberations — Justice Kennedy in effect wrote a primer for state civil rights commissions or courts about how to properly enforce anti-discrimination statutes against religious vendors.
Above all, make sure not to disparage the vendor's religious beliefs or to implicitly question his sincerity, as one Colorado commissioner did by stating the "freedom of religion and religion have been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust." The same commissioner opined that claims of religious liberty are "one of the most despicable pieces of rhetoric that people can use to... hurt others."
The Court in Masterpiece showed no inclination to engage in the pre-Smith type of balancing as applied to Colorado's anti-discrimination law. Such a balancing might have considered such factors as the existence of a large market of bakers eager to produce wedding cakes for the complainants before the CCRC.
Only Justice Thomas' concurrence, joined by Justice Gorsuch, endorsed Phillips's argument that forcing him to bake a cake in contravention of his religious beliefs constitutes coerced "expressive speech." Wedding cakes are symbols that send a message, like other forms of expressive speech — such as flag-burning. And that message is: A wedding has taken place, a marriage has begun, and there is cause to celebrate. That is a message to which Phillips could not assent, and according to Thomas, he may not be coerced to convey.
THAT IS NOT TO SAY that Masterpiece broke no new legal ground. Three years after the Smith case, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), the Court struck down a facially neutral local ordinance against ritual animal sacrifice on the grounds that it was enacted by Hialeah, Florida, out of an animus to a local Afro-Caribbean sect, which practiced such rights.
Since the Colorado anti-discrimination statute was not aimed at any particular religion, or religion in general, the rule of City of Hialeah, which is an exception to Smith, did not directly apply. But the Court found that Phillips was denied the "neutral and respectful consideration" of his religious views in the adjudicative process to which he was entitled, and thereby expanded the Church of Lukumi Babalu Aye exception to Smith.
In addition, the Court ruled the CCRC could not treat claims of conscience by bakers unwilling to back a cake containing a verse from Leviticus referring to "abomination" differently than it treated Phillips's religiously-based reasons for not baking a celebratory cake.
Justice Kennedy reprimanded the Colorado Court of Appeals for justifying the differential treatment of the claims of conscience of three secular bakers ostensibly on the grounds that the messages they rejected are "offensive in nature." "No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion," he wrote, quoting a 1943 flag salute case.
Finally, the Court, including two liberal justices, bent over backwards to interpret the factual record in a manner most favorable to Phillips. In finding that the proceedings of the CCRC were infected with a lack of respect for Phillips's religious views, Justice Kennedy relied heavily on the remarks of only one of the CCRC commissioners and inferred an anti-religious animus from the failure of the other commissioners to object to his remarks. And had the Court been so inclined, it could have distinguished the conscience claims of secular bakers from Phillips's on a number of grounds, as Justice Kagan, joined by Justice Breyer, pointed out in her concurrence.
THE INSISTENCE OF THE COURT on respect for Phillips's religious views suggests that the worst fears of the impact on traditional religious observance raised by Justice Alito in his Obergefell dissent are not on the near horizon. Alito worried that Obergefell would be used to "stamp out every vestige of dissent" and "vilify Americans who are unwilling to assent to the new orthodoxy."
Most ominously, when Solicitor General Donald Verrilli was asked during oral argument in Obergefell, whether a finding for petitioners might result in institutions that advance traditional religious teachings on marriage losing their tax exemptions — as did Bob Jones University for its promulgation of anti-miscegenation views — he could offer no assurance to the contrary.
Justice Kennedy, the author of the majority opinion in Obergefell, acknowledged in that opinion, "Many who deem same-gender marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here." (That, of course, raises the question of why Kennedy felt free to substitute his philosophical positions for those of states that preserved the traditional definition of marriage, especially given that at the time of ratification of the 14th Amendment's due process clause — upon which Kennedy based the Court's ruling — every state adhered to the traditional definition of marriage.) Masterpiece demonstrates that he was serious about what he wrote in Obergefell, if not necessarily intellectually coherent.
Elite disdain for religion and the value of religious liberty is on a precipitous rise. Professor Richard Samuelson wrote recently in Mosaic how America's governing class is increasingly hostile to institutional religion: "The elite's intrusions upon rights of conscience are not, in their view, problematic because the religious beliefs it hems are historically 'backward and atavistic.' " As candidate Hillary Clinton said in 2016, if religious Americans cannot reconcile themselves to the new "rights" recognized in Obergefell, their religion will just have to change.
Nothing better demonstrates the growing contempt for religious liberty than the Religious Freedom Restoration Act (RFRA) passed by a nearly unanimous Congress in 1993, in response to the Smith decision. RFRA restored, as a matter of statute, the previous Supreme Court requirement that impositions on religious practice be justified by a "compelling state interest." Many states followed suit with their own RFRA statutes.
Since then, however, RFRA statutes have become a third rail in American politics, as they have been portrayed as a justifying hate and bigotry in religious garb. The last two states to seek to pass RFRA statutes were subjected to devastating economic boycotts and in the end backed down.
Masterpiece signaled that the Court will not be party to the portrayal of traditionally religious citizens as hate-filled bigots, and may even serve as a brake on anti-religious sentiment going forward. Whether it will provide many substantive protections is, however, another question