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?
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.
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:
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.