Tuesday, December 19, 2017

State "Hostility" to Religion Without Religious Discrimination?: The Unexpected Free Exercise Issue Lurking in Masterpiece Cakeshop

Marty Lederman

At oral argument two weeks ago in Masterpiece Cakeshop, the Justices did not appear to be taken with any of the unconvincing distinctions that the bakery’s counsel and the U.S. Solicitor General were offering with respect to which refusals of service would, and which would not, be constitutionally protected under their compelled speech rationales, such as:

-- between pre-made and made-to-order custom cakes;

-- between jewelers on the one hand and, for some reason, make-up artists and hair stylists on the other;

-- between cake-makers and architects[1];

-- between a chef designing a beautiful presentation for a couple’s anniversary celebration and the baker’s work in this case on a cake for a party to celebrate a wedding; and

-- between discrimination against same-sex couples or interreligious couples (constitutionally protected, according to the argument) and discrimination against interracial couples (purportedly not protected).

To be sure, several of the Justices, and Solicitor General Francisco, raised hypothetical cases in which there might be greater sympathy for a businessperson’s right to discriminate.  Most of those hypos, however, described conduct that the Colorado public accommodations law does not prohibit, and others are not likely to result in many, if any, actual cases (such as Justice Alito’s example of a discriminatory refusal by a company that ghost-writes wedding vows).[2]  Still other of the hypotheticals (e.g., married-student housing at a religious college) would better be viewed not as implicating compelled speech, but instead, as David Cole suggested at argument, as raising the question whether the Court would, or might, craft additional exceptions to the general free exercise doctrine of Employment Division v. Smith.  

Most importantly, however, these hypothetical cases, no matter how sympathetic they might be in the eyes of some or all of the Justices, do not offer useful guidance regarding where the Court could draw any principled doctrinal lines on the compelled speech question.  Thus, even among Justices who might be especially sympathetic to Masterpiece and its owner, Jack Phillips, there did not appear to be much enthusiasm for breaking any significant doctrinal ground on compelled speech.

Such difficulties were hardly unforeseeable or unanticipated.  The oral argument thus renewed the mystery of why the Court granted certiorari in the first place--especially after it had denied the petition in Elane Photography, LLC v. Willock four Terms ago, when Justice Scalia was still on the Supreme Court.  Elane Photography raised virtually the same compelled-speech claim as the one at issue in Masterpiece Cakeshop.  Indeed, if anything, the free-speech claim in Elane ought to have been the stronger one of the two cases, because it involved artisans—photographers Elaine and Jonathan Huguenin—who were required to perform their services at a same-sex wedding itself, and whose job presumably included using their creativity to put the same-sex couple in the best possible light.  (I don’t mean to suggest that I think the Free Speech Clause requires an exemption in either case—I don’t.  I mean only to point out that in Masterpiece there’s even less possibility that anyone would misattribute any views to the business, and that Masterpiece’s services do not require the baker to feign acceptance/celebration of the couple, something might at least arguably be true in a case such as Elane.)

It therefore came as something of a surprise, three years later, when the Court requested the record in Masterpiece from the state court, put off decision for more than a dozen further conferences after receiving the record, and eventually granted cert.  Was there perhaps something in the record of the Masterpiece case that distinguished it from Elane in a way that troubled one or more Justices—something that might have been the subject of discussions among the Justices in the five months of conferences they had on the case after they received the record from the Colorado state court? 

I speculated that the sticking point might have been the nature of the disclaimers that state law allowed the businesses to display in the two cases—some ambiguity about whether Colorado would allow Masterpiece to post, in its shop or on its website, the sort of signage that the New Mexico Supreme Court, in Elane Photography, held that the vendor there could display without violating state law:  “a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”  (As I explain in a footnote, however, the two States probably do not vary from one another in this respect.[3])

The recent oral argument in Masterpiece, however, revealed that there was something very different in the record that was sticking in the craw of at least some Justices—namely, the possibility that one or more of the seven Commissioners on the Colorado Civil Rights Commission might have been biased against religious objectors to Colorado's public accommodations law.  As Justice Kennedy remarked (at pages 51-52 of the transcript), although all the counsel and most of the Justices were focused on the compelled speech question, he was concerned about a possible violation of the Free Exercise Clause, because of the possibility that “at least one member of the [Colorado Civil Rights] Commission” based his or her decision “in significant part . . . on the grounds . . . of hostility to religion.”  In particular, Justice Kennedy and Justice Gorsuch identified two quotations from Commission proceedings that, they suggested, might reflect such hostility.

Below the "fold," I examine more closely the evidence of possible “religious hostility” that Justices Kennedy and Gorsuch raised.  For reasons I'll explain, the two examples of possible animus they identified do not demonstrate a Free Exercise violation by the Colorado Civil Rights Commission.  Nor, contrary to Justice Alito's suggestion, was the Commission's treatment of other claims against bakeries evidence of impermissible religious or viewpoint discrimination by the agency.

What if the Court disagrees, however, and decides the case under the Free Exercise Clause based upon a purported taint of religious hostility in the administrative process?  The Court might, for example, remand the case to the Colorado Civil Rights Commission for reconsideration without the participation of the Commissioners whose remarks were at issue, neither of whom sits on the Commission today.

If that's what the Court decides to do, Masterpiece will have turned out to be a very minor, deeply fact-intensive case, without much, if any, precedential impact.  Such a result might well be for the best, for at least two reasons.  First, as the oral argument demonstrated, it would be difficult for the Court to craft a principled and sufficiently cabined compelled-speech right that would not threaten to severely undermine antidiscrimination laws.  Moreover, the notoriety of these "compelled speech through services" cases has, in my view, far exceeded the practical significance of the constitutional question:  I believe there will be many fewer of these claims-for-exemption in the next few years than many people assume—and that therefore there is no great urgency for the Court to act.  (Indeed, I’d wager that ten or twenty years from now, these cases will be virtually nonexistent.)

Even so, I think the "religious hostility" theory of the case for Masterpiece is weaker than some Justices might have assumed.

* * * *
Justice Kennedy asked whether the state court judgment could stand if “at least one member of the [Colorado Civil Rights] Commission” based his or her decision “in significant part . . . on the grounds . . . of hostility to religion.”  He further suggested that perhaps there was evidence of such hostility in the record:  “It seems to me that the state . . . has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

What was the basis for Justice Kennedy’s concern?  He and Justice Gorsuch identified two quotations from Commission proceedings that, they suggested, might reflect possible hostility:

1.  Commissioner Jairim’s remarks

According to Justice Gorsuch (p.55), one Commissioner said that “if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system.”  I believe Justice Gorsuch was referring to a comment made by former Commissioner and Vice-Chair Raju Jairim at the Commission hearing on May 30, 2014, in which the Commission was reviewing the summary judgment (see Pet. App. 61a) that an Administrative Law Judge had granted.  (The passage in question was not included in any of the briefs at the cert. stage or on the merits—the Justices presumably discovered it in the record they received from the state court.)

Former Commissioner Jairim, however, did not suggest that Phillips needed to “compromise his belief system”—not even close.  Here’s what Commissioner Jairim said, with reference to a concurring opinion in the New Mexico Supreme Court’s Elane Photography decision:

I believe . . . it was best said by the judges in the New Mexico case, where the laws are here just to protect individuals from humiliation and dignitary harm. . . .  [W]e do not want people to feel undignified when they walk into any place of business and do business that, you know, serves the public. . . .  I’m referring to the comments made by Justice [Bosson] in that case.  And essentially he was saying that if a businessman wants to do business in the state and he’s got an issue with the -- the law’s impacting his personal belief system, he needs to look at being able to compromise.  And I think it was very well said by that judge.

And here is the passage to which Commissioner Jairim was referring, from Judge Bosson’s concurrence in Elane Photography concerning the need to “compromise”:

On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice.  At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others.  A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead.  The Constitution protects the Huguenins in that respect and much more.  But there is a price, one that we all have to pay somewhere in our civic life.

In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people.  That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.  In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.  I therefore concur.

Justice Bosson wrote those words in August 2013, almost two years before Justice Kennedy’s opinion for the Court in Obergefell.  Far from demonstrating hostility to religion, I think any fair reader would agree that Justice Bosson’s opinion comes about as close to capturing the core lessons of Justice Kennedy’s opinion—including his remarks about respecting the rights of religious believers to continue to adhere to and advocate for their beliefs—as one could possibly hope for. 

Likewise, former Colorado Commissioner Jairim, who expressly embraced, and was trying to summarize, Justice Bosson’s remarks, was also merely describing the “compromises” in commercial conduct that are necessary when members of the community hold such irreconcilable views about questions involving marriage and sexuality—views that they may continue to hold, to teach and to advocate, even while they are required to treat customers equally.  Contrary to Justice Gorsuch’s suggestion, then, Commissioner Jairim did not suggest that vendors such as Jack Phillips must compromise their belief systems.  To the contrary—he (and Judge Bosson) said almost exactly the opposite. 

2.  Former Commissioner Rice’s remarks

Also on May 30, 2014, following its meeting on the Masterpiece case, the Civil Rights Commission adopted in full the ALJ’s decision, and affirmed his summary judgment against Masterpiece (see Pet. App. 56a).  That judgment concluded that Masterpiece had violated the Colorado public accommodations law, and that the application of that law to Masterpiece did not violate the First Amendment.  In addition to affirming the ALJ’s injunction requiring Masterpiece to sell to same-sex couples the same products it sells to heterosexual couples, the Commission added some remedial requirements, as the ALJ had contemplated:  It required Masterpiece to train its employees on the requirements of the Colorado law, and to provide quarterly reports on compliance to the Commission for two years.

Masterpiece then made a motion to the Commission to stay its order pending Masterpiece’s appeal to the Colorado Court of Appeals.  On July 25, 2014, the Commission held another hearing, this one to consider Masterpiece’s stay motion.  It was at that meeting that the second Commissioner’s comment in question was made.  Just before the Commission voted unanimously to deny the stay (see Pet. App. 294a), former Commissioner Diane Rice remarked:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we . . . can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use—. . . to use their religion to hurt others.  So that’s just my personal point of view.

[CORRECTION:  Like Justice Kennedy, I had read the transcript to indicate that this statement was by Commissioner Heidi Heiss.  Respondent's counsel has informed the Court, however, that the statement was made by former Commissioner Rice.]  Justice Kennedy, at least, appeared to think that this statement demonstrated “hostility to religion.”  I’m not sure whether that’s the best reading of Commissioner Rice’s statement.  As Mike Dorf notes, what the Commissioner was principally trying to convey was the unremarkable fact that, “throughout history,” grotesque injustices have been carried out in the name of religion, and that, in her “personal” view, it is “despicable” to so invoke religion as a justification for harming others.

Commissioner Rice did not specifically say that Masterpiece, or Phillips, had acted “despicably.”  Even so, perhaps Justice Kennedy was right to think that the quotation at a minimum raised the question of whether Commissioner Rice thought it was “despicable” for Phillips to invoke religion to deny services to same-sex couples.

So, for the sake of argument, let’s assume that Commissioner Rice did think that it was "despicable" for Phillips to invoke religion, and that she thought so not only when she considered the motion to stay in July 2014, but also eight weeks earlier, when the Commission in May 2014 considered whether to affirm the ALJ’s judgment.  Let’s further assume that such a perspective would demonstrate the sort of “governmental hostility” to religion that can trigger Free Exercise Clause scrutiny under Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 534 (1993).  (I should note, however, that this assumption is a stretch.  Rice's single remark, even viewed in its worst light, pales in comparison to the evidence of sect-based animus at issue in Lukumi, without which the City Council there would never have enacted an ordinance criminalizing a central practice of the Santerians' religion.)

Even if we accept these assumptions, there is no reason to think that Rice's perspective on Phillips’s religious justification for his actions played even the slightest role in the Commission’s decision to summarily affirm the ALJ's decision.  Surely, the Commission would have treated a baker who discriminated against gay men on nonreligious grounds exactly the same as it treated Phillips.  There would have been no basis in the law for any other conclusion, and it’s hard to see how anything in the Commission’s judgment might have been, or could have been, different if Phillips had not invoked his religion.  That is to say:  The ALJ and the Commission found that Phillips was subject to, and had violated, the Colorado antidiscrimination law despite, not because of, his religious views.

Moreover, the Commission’s decision—affirming the ALJ judgment that Masterpiece violated the Colorado statute and that it was not entitled to do so by the First Amendment—was reviewed de novo by the Colorado Court of Appeals (see Pet. App. 13a), and that court independently affirmed the Commission’s conclusions.  The Court of Appeals’ opinion, like the ALJ’s, was based virtually entirely on legal analysis; it did not depend on any disputes about the underlying facts of the case.  (And there’s no suggestion that any of the three judges on that court—or that any of the judges on the Colorado Supreme Court, which summarily affirmed the Court of Appeals—was hostile to religion.)

Therefore, even if Commissioner Rice was impermissibly motivated by “hostility” to Phillips’s religion, that should not raise any question under Lukumi, because regardless of what any Commissioner’s views might have been, the state of Colorado did not discriminate against Phillips on the basis of religion in implementing its antidiscrimination law.  And without such discrimination--because religion plainly played no role in the application of the law to Masterpiece--Commissioner Rice's views about Phillips's religion, no matter how disrespectful they might have sounded, could not possibly have had any effect on Phillips's religious exercise. 

* * * *
At oral argument, Justice Alito interjected to say that, in addition to the contested Commissioner statements, there “appears to be a practice of discriminatory treatment based on viewpoint” by Colorado civil rights officials.  Justice Alito was referring to complaints filed by William Jack, who had asked three Denver-area bakeries to sell him cakes in the shape of bibles, featuring images of two groomsmen holding hands with a red “X” over them, accompanied by biblical verses condemning homosexuality as sinful (one of which referred to it as a “detestable sin”).  All three bakeries were willing to sell Mr. Jack bible-shaped cakes, but refused to include the iconography and verses characterizing homosexuality as sinful and detestable.  (At least one of the bakeries offered to provide Mr. Jack icing and a pastry bag so he could himself write or draw whatever messages he wished on the cakes.)

Mr. Jack filed complaints with the Colorado Civil Rights Division, alleging that the bakeries had discriminated against him on the basis of his Christianity.  The Division investigated each of Mr. Jack’s allegations and determined that there was no evidence that any of the three bakeries discriminated against him because of his religion.  To be sure, Jack was motivated by religious beliefs, and the cakes he wanted would have been inscribed with verses from scripture.  The bakeries did not decline to produce the cakes because of Mr. Jack’s beliefs, however, or because of his religious identity:  They would have denied such requests to any customers, regardless of their religion or “creed,” because the bakeries categorically refused to include any such “derogatory language and imagery” on their cakes.  They were certainly not discriminating against customers on the basis of their religion, or the fact that their views were based in their understanding of Christianity.  (Indeed, as the Colorado Court of Appeals noted, all three bakeries "regularly created cakes with Christian themes.")  The William Jack cases thus do not demonstrate any religious discrimination by Colorado civil rights officials.  

At oral argument, Justice Alito suggested that Colorado’s comparative treatment of the William Jack and Jack Phillips cases reflected a form of viewpoint discrimination (presumably in violation of the Free Speech Clause).  In his words:  “It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage.  But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”

This reflects a fundamental misunderstanding of Colorado’s public accommodations law (and that of most other states).  As the William Jack case demonstrates, a vendor can refuse to inscribe on his products any particular message, without violating Colorado law.  Thus, just as any vendor could categorically refuse to sell any products that disparage gays, or same-sex marriage (as occurred in the William Jack cases), Jack Phillips and Masterpiece could categorically refuse to sell—to anyone—cakes bearing particular messages in support of LGBT rights, such as “All Marriages are Equal,” or “We Support LGBT Weddings,” in the same way he (lawfully) refuses to make baked goods with Halloween themes.  Colorado treats all of these refusals to inscribe particular messages equally:  It permits vendors to categorically decline to sell such inscribed products; but, as with all products, it prohibits vendors from selectively selling such products to particular customers (or for particular users), and refusing such sales to others, on the basis of a protected characteristic of the customers/users, such as race, religion, or sexual orientation.

[1] Justice Alito offered Masterpiece’s lawyer the (friendly) analogy to an architect.  He then appeared to be surprised, if not incredulous, when counsel insisted that the Free Speech Clause would not protect the architect.

[2] For example, Solicitor General Francisco asked whether an opera singer who had performed at the National Cathedral would have to also perform at the Westboro Baptist Church.  Depending on why the singer would decline to perform at Westboro, such decision might not be on the basis of any ground prohibited by the Colorado law (e.g., if it were based on the clients’ viewpoints rather than on their religions).  In any event, an opera singer who makes highly discretionary decisions about where to perform is almost certainly not a “public accommodation” covered by the law. 

Similarly, Chief Justice Roberts wondered whether a Catholic Legal Services organization that provides pro bono legal representation for matters such as wills and contract disputes would be required to provide such services to a same-sex couple, where the organization’s religious tenets prohibit such marriages.  It is not obvious that such a legal services operation would be covered by the law—like most law firms, it presumably would be highly selective in choosing its clients.  The Chief Justice therefore amended his hypothetical to posit that the organization has “taken every other customer to date.”  It’s hard to imagine there exist such legal services organizations, in the actual economy, who are generally indifferent to the clients they represent.  If there were such an organiaation, however, it presumably would be covered by the Colorado law—in which case, as David Cole suggested, it would be required to provide the same-sex couple with the run-of-the-mill legal services offered to everyone else, unless and until the Court carves out another Free Exercise exception to Employment Division v. Smith.  (The Chief Justice understandably appeared to be more concerned about the impact on the organization’s faith rather than any alleged speech compulsion.)

Justice Alito wondered about a bakery that would sell a cake with the inscription “November 9:  The Best Day in History” to a couple celebrating their anniversary, but that would refuse to sell a cake with the same inscription to someone planning a “party to celebrate Kristallnacht.”  Thankfully, there will not be any such absurd cases; but if there were, that refusal would not in any way violate Colorado law because the bakery would not be discriminating on the basis of a protected characteristic of the customer.

[3] New Mexico’s permitted disclaimer—including that the vendor “oppose[s] same-sex marriage”—facilitates a point the Court later made in Obergefell, namely, that even though same-sex marriage is now constitutionally protected, “those who adhere to religious doctrines may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”  In Masterpiece, the Colorado Court of Appeals did not go quite that far:  It merely stated that Masterpiece could post a disclaimer saying “that the provision of its services does not constitute an endorsement or approval of conduct protected by [Colorado’s antidiscrimination statute]” and that that law “requires it not to discriminate on the basis of sexual orientation and other protected characteristics.”  One might therefore wonder whether Colorado law would permit the bakery to post a sign such as the one that would be permissible in New Mexico, stating expressly that its proprietors “oppose same-sex marriage.” 

On my reading of the relevant Colorado statute, it actually would permit Masterpiece to post such a message.  The statute provides that “[i]t is a discriminatory practice and unlawful for a person, directly or indirectly, to . . .  display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates . . . that an individual's patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

As I understand it, this law would allow Masterpiece to post a disclaimer along the following lines:

“We oppose same-sex marriage because we consider it to violate God’s law.  Nevertheless, we comply with all applicable antidiscrimination laws and we welcome everyone’s patronage, regardless of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

Indeed, such a disclaimer would be consistent with what everyone in the Denver area already understands about Masterpiece and its owner, Jack Phillips—that although they do not consider any customers’ patronage to be unwelcome, objectionable, unacceptable, or undesirable because of their sexual orientation (in fact, they strongly insist that they welcome such patronage), they do oppose same-sex marriage and thus would not make cakes for celebrations of such marriages were it not for the state law requiring them to do so.

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