Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Romer, Lawrence, Windsor,
Obergefell and now Bostock:
in recent years, pro-gay and pro-trans litigation in the Supreme Court has
wrought immense changes in the social position of LGBTQ humans.LGBTQ communities have grown so large and
robust, and there are so many places in the U.S. where many of them can thrive,
that it’s possible to forget that almost all of these judicial victories are
profoundly controversial. Silo’d as we
are in our favored media feeds, we can become utterly unacquainted with the
consciousness of people who regard our big victories as calamities.
key fault line is the confrontation of LGBTQ rights to marriage equality with
the deep religious conviction of many religious communities that “same-sex
marriage” is an oxymoron. This conflict increasingly takes the shape of a clash
of conflicting constitutional rights: LGBTQ equality versus religious
liberty.Have LGBTQ communities made
sufficient progress that there can be a left, pro-gay position accepting some
accommodation of this conflict in the form of exemptions from
anti-discrimination laws for religious conscientious objection?
Gay Rights vs. Religious Liberty?: The
Unnecessary Conflict, Andrew
Koppelman argues for a new approach to the highly polarized conflict between
LGBTQ rights and religious freedom.His goal – which I share – is to foster a
genuinely pluralistic left, capable of sympathetic – or teeth-gritting –
cohabitation with religious minorities, and to frame and justify a rule
permitting narrow and burdened exemptions.Is there a pro-gay case for religious accommodation?Koppelman has made one, and I will join him –
with just a few small differences – here.
assess Koppelman’s claims, I am going to return to Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018
Supreme Court decision arising from a baker’s refusal, grounded in his
religious convictions, to make a gay couple a wedding cake.In this essay, written in the spirit of
the CLS critique of rights, I follow the saga of Masterpiece Cakeshop and its
front man Jack Phillips in the Colorado Civil Rights Commission and the courts
(Part 1); try to identify the harm that LGBTQ constituencies genuinely face
when confronted by a service refusal like Phillips’s (Part 2); identify a defense that Phillips could rely on
in an ongoing civil lawsuit against him by a transgender woman whom he refused
to serve because of his religious beliefs (Part 3); and argue that there are pro-LGBTQ
reasons to support that defense (Part 4). In the process of Parts 3 and 4 I argue for a
narrower religious exemption, one that would be more burdensome to qualify for,
than the one proposed by Koppelman, but throughout I praise his book for its
comprehensive and incisive thinking through a super-tough issue.
1:The Saga of Masterpiece Cakeshop
July 2012, Charlie Craig and Dave Mullins went to Masterpiece Cakeshop seeking
a wedding cake to celebrate their earlier formal marriage in
Massachusetts.At that time Colorado had
two strong Defense of Marriage provisions, one in the Constitution and the
other statutory, not only barring the celebration of same-sex marriages in the
state but denying in-state recognition to valid out-of-state same-sex
marriages.The federal government had its own DOMA.But Massachusetts had recognized same-sex
met with them personally and, when he heard that the cake was intended as a celebration
of their marriage, he explained that he did not make cakes to celebrate
same-sex weddings.He repeated this
policy when Craigs’s mother called the next day to ask about the incident: he
apologized, but declined to deal.In
September 2012, Craig and Mullins brought a charge of discrimination under the
Colorado Anti-Discrimination Act against Phillips and Masterpiece
Cakeshop.The Civil Rights Division
found that Craig and Mullins’s complaint was supported by probable cause; that
moved the case to the CCRC, which in turn referred it to a ALJ, who found for
the CCRC’s review was pending, one William Jack did his own testing in Colorado
bakeries.In three bakeshops, he
requested two cakes, both shaped like Bibles. One would be decorated by the
figures of two groomsmen overlaid by a large red X; the others would blazon
Biblical verses including Leviticus 18:2.The bakers all turned down the jobs on the grounds that the message sent
by the proposed cakes was offensive or hateful. Jack then complained to the
CCRC that he had been discriminated against on the basis of his creed.Jack – probably deliberately – set a
potential trap for the CCRC: could it treat a case of alleged discrimination
based on religion the same as a case of alleged discrimination based on sexual
orientation; could it treat a religiously motivated refusal the same as a
secular one; and were these problems dissolved by the differences between
requests for a marked cake and a very generic request for a wedding cake
rejected before any design ideas had even been broached?
its procedures, the CCRC determined that Phillips had violated the statute,
ordered him to cease and desist from further violations, and required him to
institute staff trainings and to make periodic reports of all service denials.And it found that the bakers confronted by
Jack’s request had rejected his proposed message without discriminating against
him on the basis of his religious conviction.
took his appeal to the Colorado Appeals Court, which affirmed.Certiorari was denied by the Colorado Supreme
Court in April of 2016, and granted by the U.S. Supreme Court on June 26, 2017.
very day Phillips got a call from Autumn Scardina, a transgender Denver
attorney, asking for a blue cake with pink frosting, and indicating that the
design referred to her status as transgender.Phillips explained that his religious beliefs
barred him from making the cake.
to a complaint Phillips filed later on, a campaign of calls and emails
followed.Most of these were anonymous,
but the first phone call revealed Scardina’s name on the caller-identification
screen on Phillips’s phone.One contact
was a visit to the shop: when asked her name, one of the two shoppers answered “Autumn
Marie.” I am going to assume that Scardina was the initiator or at least a
participant in the sequence of requests: they were so bizarre, provocative, and
similar that it seems vanishingly unlikely that a second person would come up
these requests were Satanic in theme, pretty much the sweet spot of proposals
Phillips would be sure to refuse. Thus
Phillips was asked to make a custom cake for Satan’s birthday, with “red and
black icing” and “an upside down cross, under the head of Lucifer.”A subsequent call made a very similar request,
but seeking “an image of Satan smoking marijuana.”The visit to the shop involved a request for
a cake decorated with a pentagram (a five-pointed star, sometimes associated
with witchcraft or Satanism). Phillips
refused to make all these cakes on religious grounds.
June 26, 2017, Scardina filed a discrimination claim in the CCRC alleging that
Phillips had discriminated against her on the basis of her sex and her gender
identity when he refused to make the pink-and-blue cake.
June 4, 2018, the Supreme Court issued its ruling in the Craig and Mullins’s
case.It did not address the merits except in the
many concurring and dissenting opinions.Instead, a 7-to-2 majority held that the CCRC process had been tainted
by an unconstitutional bias against religion.It reversed the Colorado Court of Appeals decision and “invalidated” the
CRCC order.There was no remand. 
The case was closed.That same day Philips
received this email from a person claiming to be “a member of the Church of
thinking a three-tiered white cake. Cheesecake frosting. And the topper should
be a large figure of Satan, licking a 9” black Dildo.I would like the dildo to be an actual working
model, that can be turned on before we unveil the cake.I can provide it for you if you don’t have the
means to procure one yourself.
performing fellatio would of course also be among the images Phillips would
than a month after the Supreme Court ruled in Phillips’s favor, the Civil
Rights Division held its probable cause hearing on Scardina’s complaint against
him.It found probable cause,
thus commencing the CCRC’s review of the case.
August 2018, Phillips filed a civil complaint in federal district court
alleging that Colorado officialdom was pursuing a vendetta against him because
of his religion in violation of his rights to equality, due process and free
exercise.The complaint disclosed that Phillips had
closed down his wedding cake operation, causing the loss of 40% of his revenue
and corresponding staff cuts.
March, the state Attorney General announced that both Phillips’s suit against
Colorado officialdom and Scardina’s complaint within the Civil Rights Division
were simultaneously closed.But Phillips’s Sisyphean labors were not
done: Scardina promptly reframed her original complaint as a civil suit in
Colorado trial court.Phillips’s motion to dismiss was almost
and the case is, as I write this, in discovery.
2: Craig, Mullins, and the Scale of the Harm
couple was, from an LGBTQ movement perspective, the ideal famous
plaintiffs.They gave hundreds of
interviews, served as Grand Marshalls of Denver Pride,
and – looking fabulous in beautifully chromatic suits – kissed on the steps of
the Supreme Court on the day of oral argument.They articulated the harm that they
encountered at Masterpiece Cakeshop, scaling
it up from a simple denial of service.
they suffered shock and humiliation.Craig to the queer press: “We were just mortified and embarrassed.”Craig’s mother, Debbie Munn, who went on the
Cakeshop adventure with them, wrote in Time
that “We went into that store happy. We left broken.”
Both Munn and the young couple felt that they had failed each other.Munn rejected any suggestion that her son and
his husband could easily get another cake, or that the case was about artistic
expression:“It’s about whether bakeries
and other businesses can hurt people like Charlie and Dave because of who they
are. … They were told they weren’t good enough to be served in their own
community.”It was a status injury manifested in pretty
intense emotional suffering.
second, the event had an extensive temporality, reaching into the past and
across the future.This took several
was its power to evoke past experiences of assaultive and violent anti-gay
animus.Craig disclosed that he had
struggled in his teens to come to grips with his sexuality and was preyed upon
by bullies in high school as a result. He spent his college years at the
University of Wyoming in Laramie and felt the looming threat of Matthew
Shepard’s brutal hate-filled murder.Even though Phillips’s manner (according to
himself) was mild, even though he offered to do any other business with the
couple, and even though he apologized to Munn when she repeated the
wedding-cake request the next day by phone, his refusal of service threw Craig
back to these memories of physically threatening and physically violent hate.
incident extended into the future, also, in the form of an intimidating fear of
another rejection. Mullins: “It really sticks with you and it’s almost
surprising how much that memory becomes pervasive and is kind of always there….
The big one that gets me is when I’m doing business with someone over the phone
and I can’t really see how they’re reacting to me.I find myself caught on that word – do I say
‘husband’?Do I say ‘partner’?Do I say ‘friend’?”Munn agreed: “I still see how that day
changed their lives. When they walk into a store, there’s that nagging feeling
in the back of their mind telling them that this might be the day that they get
turned away again.”
of the things I most admire about Koppelman’s argument is that he takes all
this harm on board.He credits it and
works for a deal between gay rights and religious liberty that respects
it.He’s not giving up his stand with
pro-LGBTQ forces even while he argues
that there is a segment of the religious community that should and can be
accommodated. The harms of shock, humiliation, dread of repetition, and
symbolic resemblance to experiences of actual violence and menace are reasons,
in Koppelman’s analytic, to accommodate, if at all, only narrowly.
There are other articulations of the harm, however, which Koppelman rejects.I admire this too, both because I think
he’s right and because it has produced, and will produce, angry blowback.
Mullins, and Munn argued that their experience at Masterpiece Cakeshop was
continuous with all the discriminatory treatment suffered by LGBTQ
constituencies across time and space, from birth to death.Thus, the incident crystallized a vast
expanse of simultaneous and future harms suffered by others.What they went through was not “an isolated
incident,” said Craig: “This happens all the time. This is not new and it’s
going to continue.It happens from birth
to death and everywhere in between.”Craig again: “[W]e’re standing up for these
thousands of other people who are discriminated against all the time[.]”Munn also extended the injury in time and
space: “Should the bakery prevail here, Charlie and Dave and countless others
will have to live under that constant cloud of uncertainty, of fear.”And the harm was intersectional:Mullins reflected that, if what happened to
them was going to pass muster with the Supreme Court, interracial couples could
be denied hotel rooms and single mothers could be denied jobs.
was good strategy for Craig and Mullins to express solidarity with LGBTQ
constituencies and other subordinated groups, and to frame their suffering as a
symbolic crystallization of all the discriminatory treatment those
constituencies suffer, but, seen strictly as description of what happened in the Masterpiece Cakeshop, it is inflationary. It promotes what Sharon Marcus has called the
“collapsed continuum”: a representation of the harm suffered by a marginalized
social group as all the same and as identical with the worst forms that it
takes.Koppelman has already done battle with this
tendency in pro-gay advocacy.In an
article he published leading up to the book, in which he predicted that a
limited, burdened exemption from anti-discrimination laws would not run down a
slippery slope to the return of Jim Crow for sexual minorities, Koppelman
argued that gay people’s deep experience with “[d]iscrimination and violence”
can lead them to “see the danger of it everywhere. It’s hard to get your mind
around the fact that the vicious monster who abused you is now in hospice
response t that earlier publication, Shannon Gilreath and Arley Ward argued
back that gay suffering ran continuously from service denials to youth
homelessness to youth suicide to hate crimes to vicious hate crimes against the
person to bias-related murders – a collapsed continuum.In riposte, Koppelman sliced into the
sequence, arguing that “[d]enying exemptions is not necessary in order to
address the atrocities Gilreath and Warn enumerate.Those atrocities will not be prevented by
shutting down a few Christian bakeries and florists.”He is arguing for a return to scale.
is something liberating in this deflationary effort.You can be pro-gay and want to engage in
it.Here are some reasons why.Exaggerating the scale of the harm done by
service denials, equating them with youth homelessness and hate-motivated
murders, makes it impossible to see the context in which each of them is
situated and disables pragmatic thinking about how to address them.It makes the smaller injuries more painful
than they need to be.And it produces
sentences like this one: bids for religious accommodation “are really proposals
for the institutionalization of violence against Gays, with impunity for it in
law.”Not far down the road from assertions like
this one lies a new form of unfair stereotyping and even hate: gay
anti-religious stereotyping and hate. This will be just as corrosive of our
souls as the stereotyping and hatred thrown at sexual minorities has been for actively
homophobic and transphobic political forces, including some religions.
logical next step after the eliding slide from service denials to legitimated
violence is the argument that religious vendors seeking exemptions from civil
rights enforcement are hateful hypocrites, wolves in sheep’s clothing, hiding
their vicious anti-gay animus behind an innocuous but fake veil of religious
piety.The best example of this,
perhaps, comes from Masterpiece Cakeshop itself,
in a CCRC meeting convened to review the ALJ’s determination.One of the commissioners inveighed:
of religion and religion has [sic] 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 – 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 – to use their
religion to hurt others.
scale of the harm is immense: it sits on a continuum with slavery and the
Holocaust. This is a vast shift in scale from a refusal to sell a wedding cake,
even when experienced, as Craig and Mullins did, with personal distress
approaching trauma, dread of repetition, and reactivated memories of actively hateful
personal past experience. And the
motive is not merely hurtful but deceitful.Religious faith is in bad faith: it seeks not to honor God but to vent
itself on a despised other.
Koppelmandevotes a chapter to refuting this argument,
repeatedly noticing that it mirrors ugly stereotypes of LGBTQ people and
catches those who fling it in a vicious circle of dehumanizing contempt.I think he’s right.Koppelman’s
argument is not that such people don’t exist on the religious right; rather it
is that many exemption seekers are perfectly sincere about their devotion and
sometimes even sorrowful about what divine authority (as they perceive it)
requires them to do.Phillips might even
be an example: after all, he apologized to
Munn when she followed up with a phone call the next day.
third form of of scaling up is very much in evidence in left-liberal legal
theory, and supports the Jim Crow analogy. You could call it the glimmering perception
that those seeking exemptions are the visible front edge of a hidden but vast
right wing conspiracy seeking to return the U.S. to the bad old days of steep,
severe, and punitive sexual repression.
Murray, analyzing Masterpiece Cakeshop,develops this argument.She
shifts the “lens” with which to see Phillips to frame in the entire sexual
revolution in law, starting with Griswold
and running right on through to Obergefell.As much as this massive shift is
celebrated on the left, to the many elements onthe right it is a calamity.What
if Jack Phillips is taking aim at this huge legal transformation, and trying to
restore the status quo ante:
state-sponsored and culturally pervasive sexual repression? “Through this lens, we might view Phillips’s
claim as not merely a request for an accommodation or carveout but rather as a
bid to return to a time when antipathy for same-sex sexuality was clearly
articulated and enforced.”
explores several ways in which this could happen.One is by the sheer proliferation of one-off
danger is not in Jack Phillip’s individual refusal taken alone. A thousand Jack
Phillipses armed with religious accommodations have the potential to create a
network of refusals that would make it virtually impossible for LGBTQ persons
to plan a wedding or, indeed, to participate in many quotidian aspects of
agrees with Murray that this outcome is unacceptable.But he believes that a narrow and burdened
exemption can be designed to be so costly that very few would seek it.I think he’s right, though, below, I argue
that it’s possible to devise a narrower and more heavily burdened one thanKoppelman’s.
profoundly and insidiously, Murray sees an accommodation for Phillips as part
of a planned retreat, orchestrated across the religious right, into a private
sphere slowly but inexorably subtracted from a public sphere now governed by the
“public values of liberty and equality”so that it can be governed instead,
privately, according to the illiberal norms of the religious right.It is akin to segregationists’ retreat to
restrictive covenants and “segregation academies.”The ultimate aim of this strategy “might well
be part of a broader effort to undermine Obergefell
v. Hodges and Lawrence v.Texas….” – that is, another major
reversal in constitutional law and the farthest thing from a private retreat.
Koppelman recognizes that such conspiratorial far-right religious activists
exist, but also provides examples of other exemption-seeking Christians who
renounce homophobia not only in their brand messaging but in their pastoral
work.LGBTQ advocates should be able to find common
ground with them, he argues.I think the
evidence of the Masterpiece Cakeshop conflict
suggests that Phillips himself is such an example.
3: Re-interpreting Jack Phillips
Phillips’s business model was based on perfectionist Biblical injunctions: “So,
whether you eat or drink, or whatever you do, do all to the glory of God” (1
Cor. 10:31); “And whatsoever you do in word or deed, do it all in the name of
the Lord Jesus, giving thanks to God and the Father through him” (Colossians
3:17).He strove to run a bakery that was pleasing
wedding cake side of the business was entirely custom, and he also made custom
cakes for other gatherings and celebrations. For
every customer, he or his staff “asked them about the kind of cake they wanted,
the desired content, colors, themes, words, and styles, and what event, if any,
the cake will celebrate.”No contract to make a cake was final until
Phillips personally approved it.On the day of the wedding, he would deliver
the cake and set it up personally, greeting the couple and family.
claims that he “serves all people – individuals of all races, faiths, sexual
orientations, and gender identities – and will design and create custom cakes
for anyone.”He does not ask customers about their
personal characteristics because those are irrelevant: his “decisions about
whether to create a custom cake do not focus on who the customer is, but … on what
the custom cake will express or celebrate.”He alleges, therefore, that all his
preclusions – all based in religious belief – apply across the board, no matter
what the personal characteristics of the potential customer might be.
Phillips holds a religious belief “that all people are of equal dignity and
worth,” he declines to make “cakes that demean people[,]” including
“LGBT people,” and to make cakes that “express hateful, vulgar, or profane
messages.”His “faith teaches him that Satan
is the cause of great evil and suffering in the world,” so his policy barred
“cakes that celebrate or otherwise express support for Satan”; he also, for the
same reason, sacrificed the lucrative Halloween-cake business.He will not make cakes “promoting the use of
illegal drugs or other controlled substances like marijuana and alcohol.”His religious beliefs counsel that “human
life is precious from conception to natural death,” so he does not make cakes
“that express support for abortion, euthanasia, or assisted suicide.”
because “his faith teaches him that marriage is a lifelong union between one
man and one woman,” he does not make cakes that celebrate divorce or same-sex
marriage.And because his faith teaches
him that “sex – the status of being male or female – is given by God, is
biologically determined, is not determined by perceptions or feelings, and
cannot be chosen or changed[,]” he does not make “cakes that express messages in
conflict with these religious beliefs about sex.”
notoriety for precisely these practices in the Denver area is a pretty close
approximation to the notice that, Koppelman argues, should be required to
shield religious businesses from discrimination claims when they decline to
assist in the preparation of same-sex weddings. Scardina certainly knew about them; she
alleged that she started her cake-requesting campaign after hearing broadcasts
of Phillips’s advertising.And Scardina
v. Phillips will provide the Colorado Civil Rights Division, its CCRC, and
possibly some mix of Colorado and federal courts – perhaps the Supreme Court –
the opportunity to decide whether this business model supports a defense
against a claim of discrimination on the basis of sex and gender identity.
there a left moral/political position that would accept Phillips’s defense in this case?
concludes, I think prematurely, that – because Phillips would make a
blue-and-pink cake if one was requested by most customers – he must have been
discriminating on the basis of sex and gender identity when he declined to make
one for an openly transgender woman.I think our shared goal of a more pluralistic
left is better served by a defense based on Phillips’s business model.
There are two versions
of the episode in the scant record available to me.By the time she sued Phillips in civil court,
Scardina’s story was that she told Phillips she was transgender and he
immediately responded that he would not make the requested cake: a highly
convincing account of discrimination based on Scardina’s sex and gender
identity, both protected characteristics.But in her own earlier statements of her case, the decisive disclosure
was her plan to present the cake at a celebration of her transition.This version opens up access to a defense
based on factfinding that Phillips was declining, based on his religious
beliefs, to participate in that expressive activity. And there are good reasons to credit the
earlier-told version over the later one. Scardina presented the later version
after long exposure to Phillips’s legal defense. By then she was enlightened
about the relative strategic advantages of showcasing her protected
characteristics and downplaying the celebration of her transition.And it’s the version Phillips has told from
the beginning.If she ever testifies in
this case, she may well be faced with the credibility-undermining question,
“Which time were you telling the truth?”
matter here, so I’ll give the two accounts a close reading, starting with the
later, more winning, one.The civil complaint,
filed in 2019, alleges that Scardina told the person who answered her call (who
later documents reveal was Phillips’s wife Debi Phillips)
that she wanted a birthday cake with the pink-and-blue design.Mrs. Phillips then said that the shop could
make that cake, and then Scardina
informed her that “the requested design had personal significance for her
because it reflects her status as transgender female.”Scardina has announced her protected
characteristics, more obliquely indicated what the requested cake would mean to
her, and entirely elided “what event … the cake will celebrate.”It was only then that Mrs. Phillips
indicated that Masterpiece Cakeshop did not make cakes for “sex changes.”Scardina called again, spoke to another
salesperson, and re-requested the blue-and-pink cake.In reply, she was told that “such a cake
violated their religious beliefs.”In this story, Masterpiece Cakeshop agreed to
make the blue-and-pink cake, and then rescinded that agreement precisely when
it learned that the person requesting it was transgender.Moreover, after being informed that the
Cakeshop would not make the requested cake, Scardina alleges, she volunteered
that “the cake was for a birthday celebration and not a ‘sex change’ celebration,” whereupon she was informed
that the shop “do[es] not make cakes for that,” and the call was terminated.The entire account supports a conclusion that
Masterpiece Cakeshop was not declining to send a message about sex change or
refusing to participate in a gender-transition-affirming celebration, but
discriminating against Scardina on the basis of her sex and gender identity.
Scardina commenced her earlier administrative complaint in the CCRC, however, she
told a significantly different story. In her Charge of Discrimination, Scardina
alleged that “Respondent refused to prepare my order for a cake with pink
interior and blue exterior, which I disclosed was intended for the celebration
of my transition from male to female.”In its probable cause letter, the Civil
Rights Division also put the request for a cake, the request for the special
design, and the special reason the design was important to Scardina, before Mrs. Phillips’s statement that
the Cakeshop would not make the cake. The special reason is different also: it is no
longer a simple coming-out statement.And it completely contradicts the allegation in Scardina’s later
Complaint, which relates that she disavowed
any intention to use the cake to celebrate her transition.Instead, Scardina wrote when she commenced
her administrative complaint, the intended use of the cake was in a gender-transition celebration.According to the Civil Rights Division,
quoting testimony it gathered from Scardina, the callback proceeded in the same
sequence: she “’was calling to order a birthday cake and that [she] wanted it
to be blue on the outside and pink on the inside because [her] birthday was the
same day as the day [she] came out as transgender.’”Phillips told the Civil Rights Division that
“he would not support a messagethat
‘promote[s] the idea that a person’s
sex is anything other than an immutable God-given biological reality’”: note
that the internal quotation is from Phillips himself.
Scardina’s own first public statement of the facts, in passages from both
parties’ testimony before the Civil Rights Division, and in the narrative
adopted by the Civil Rights Division, Phillips declined to make the cake as
soon as he learned the use to which
the cake would be put and the message
that the would-be purchaser attributed to its special design.This version supports Phillip’s claim that he
was not discriminating against Scardina because of her sex or gender identity,
but declining to make a distinctive cake because it would entangle him in
expression which was countermanded by his religious beliefs – with the known
collateral impact that a transgender woman was being denied service.
Scardina v. Phillips thus
gives the Colorado courts, and perhaps the Supreme Court, a shot at holding
that Phillips’s business model carefully cabined his decision to decline to
make the cake to its expressive use, and that he was entitled, in the exercise
of his religious freedom, to decline to do so. What should pro-gay thinking be, in deciding whether to accept that outcome?
4: What Rule?
arguments that need to be worked through to answer the big question –
business-model/expression/free exercise exemption or not? – come up at a lower
level of generality when deciding a sub-rule implicated by the facts in Scardina v. Phillips: assuming the
vendor’s decision is otherwise permissible, is it precluded if the vendor knows
that the potential customer is protected under the anti-discrimination law
because of his or her protected characteristic(s)?
Colorado Civil Rights Division seems to be unsettled on the mental state rule
governing cases in which bakers refuse to make a cake carrying a message
despite knowing that they are refusing service to a person with protected
characteristics.In the William Jack
cases, in which the potential customer asked for cakes marked with anti-gay
messages, some of them Biblical verses, the Division distinguished between the
bakers’ intent in refusing to provide service and their knowledge of the personal
impact of their actions: they were not liable where their intent was
permissible, even though they had knowledge of impact.But in
Phillips’s case, faced with his explicit invocation of this distinction, the
Division called it a “distinction without a difference,” and reasoned that an
“’intent to disfavor’ a protected class of persons should be “readily …
presumed’ from the knowing failure to serve someone who belongs to that class.”I’ll call this an impact-only mental-state
think a pro-gay leftist should prefer the more permissive rule.
a cake is just a cake, this argument won’t fly.But Phillips’s custom cakes are not just cakes.He is not selling cakes simpliciter but rather a personal service that requires him to do
the design and to execute it, culminating in a unique product for a particular
customer and a particular event.It’s custom. This level of involvement plus his religious
commitments constitute a permissible intent that is unrelated to the prospective customer’s personal characteristics.
would not extend the possibility of the more forgiving mental-staterule to a cakeshop that set out a refrigerator
case of ready-made cakes and refused to sell them to customers who announced in
the checkout line: “This will go great in our same-sex-wedding reception!”And – pace
Justice Thomas –
it’s not about the expressivity of a wedding cake; it’s about all the custom cakes
and possibly also the photography and flowers too.It’s about a business model that entwines the cakeshop so significantly in the
customer’s event that I’m willing to call the resulting cakes (and non-cakes)
expressive and not directed to the
customer’s protected characteristics.
business-model exception would be a lot more burdensome for the vendor than
Koppelman’s requirement of posted notice.The level of personal service, deliberate novelty, and tailoring to the
event involved will require more highly skilled staff, more time, and more
expense; cakes produced this way will be more expensive to customers than
similar cakes lacking these extras.It
will be a niche business.Only people
who put moral importance on running what is, to them, a morally clean shop will
do it. These will be few. And it will sort those who care deeply from
those who don’t – who might even take malicious joy in posting a nasty “no
know that making cakes for celebrations that Phillips cannot find a place for
in his religious beliefs is so repellent to him that he was willing to lose
almost half his business to avoid it.If
Scardina v. Phillips is ultimately
decided for the plaintiff, his custom cake operation might shut down entirely,
and possibly the bakery with it.And
this is a guy who would certainly refuse to make Jack’s requested cakes because
he would immediately see that the design demeans gays, and who aims to treat “LGBT
people” as human equals, with dignity and respect.
argued elsewhere that the logic of queer theory, animated as it is by an
anti-categorical impulse with respect to sexuality and gender, is to extend its
affirmations to genuinely oddball ways of life and passions even if they aren’t
defined, centrally, by sexuality or gender even a little.On that logic, Phillips – who thinks his cakes
are masterpieces and who is straining every muscle in the effort to run a business
that is pleasing to God -- is at least as queer, in his own way, as Craig and
Mullins. Why is he our enemy?
between the more demanding and the more forgiving mental-state rule, then, I’d
suggest that pro-gay advocacy should prefer, or at least not militate against,
the more forgiving one.I do this fully
acknowledging the deep hurt and anxiety that Craig and Mullins suffered because
Phillips denied them service.But Craig
and Mullins aren’t the only ones exposed to injury here. Indeed, queering the
assessment by granting both sides equivalent moral claim on our sympathy, there
is injury to be concerned about however the case comes out.
Craig and Mullins, on one hand, and Phillips, on the other, have a choice about
how to feel if they end up holding the short end of the stick. There is nothing
inevitable about experiencing a service denial as a continuation of
intentionally hateful high-school bullying or the torture death of Matthew
Shepard; and Phillips’s willingness to give up his entire business rather than
break his battery of proscriptions is equally optional.They both have alternatives: dozens of
cakeshops in Denver would welcome Craig and Mullins’s business; and Phillips
can direct his worship to a less demanding God or engage in a livelihood that
doesn’t present so many challenges to his conscience.
do not think that a social movement has to follow the Constitution’s
privileging of religion in making its advocacy choices: judges may have to do
so in adjudicating cases, but at the level of picking a mental-staterule for a state anti-discrimination
statute, or for deciding its position on religious exemptions more generally, social
movements can prefer themselves even when their adversaries in conflict are
exercising their religions.
the same time, I think that the distinctive way that LGBTQ litigators and
Justice Kennedy developed the right to marriage equality – making it turn, in Obergefell, not on formal equality but
on a very thick representation of marital and gay dignity – destined that right in particular into conflict with those who
see marriage and sexuality differently than they did.They loaded the right with so much
significance that those who don’t want to signify that way were certain to seek
an escape hatch.In a way, we made our
bed and now have to lie in it.
deciding factor for me is the profile of the LGBTQ movement that would result
from choosing, at a lower level of generality, the strict, impact-only rule, or
at the higher one, opting for a no-exemptions rule.In making these rule-advocacy choices, we are
in a position to harm ourselves.
the no-exemptions rule and the impact-only mental-state rule would allow
members of protected classes their own exemption from business decisions and
policies made entirely without reference to the customer’s sexual orientation
or gender expression.When it comes to
the wedding industry, it would expand the right to same-sex marriage into a
right to clear from one’s wedding-preparation experience any encounter with
controversial status of Obergefell in
our society.In Scardina v. Phillips, these rules would hold good-faith bakers
following Phillips’s business model, who don’t agree that gender transition is
possible, liable for making a real, live social controversy visible in their
business practices.Seeking it would
elevate the right to equality and dignity of LGBTQ persons into a right to a
fake experience of non-pluralism on key movement issues.
a mental experiment that might make the sweeping scope of either rule
apparent.We’ve assumed so far that,
under the Colorado public accommodations anti-discrimination statute, the
people with protected characteristics belong to the subordinated group.But the
statute is written to invite formally equal treatment to all from
discrimination based on their “disability, race, creed, color, sex, sexual
orientation, marital status, national origin, or ancestry;” Is it really a good
position for the LGBTQ left to open the door to impact-only claims of disparate
treatment by cis-gender heterosexuals?That’s
a lot of power to squelch minoritizing practices deeply important to members of
the ugliness and cruelty of Scardina’s campaign against Phillips should be a
warning to us.Leave aside her deliberately
and luridly offensive Satanic-cake requests. The pink-and-blue cake request set
up a scenario with only two exits: either Phillips did for her something deeply
offensive to his conscience, or she would launch a second legal campaign
against him.What if he had caved?Who would want the construction of that
sadistic dilemma, or any role in that moral collapse, on their conscience?
own people are capable of wielding a right to complete non-impact, or to a
blanket no-exemptions rule, not as a shield but as a sword, against believers
who think they are just as much a beleaguered minority as we think we are. If you are convinced of the slippery slope
from a narrow, burdened religious exemption to a reign of illiberal norms
oppressing LGBTQ people, you will think this justified. But please notice what
you are doing: using anti-discrimination law to force people who disagree with
you on major public policy issues, but who lack the massified will to exclude
you from civil equality, to perform insincere and conscience-crushing
affirmations of your own norms.The
same was done to your antecedents in the LGBTQ liberation movement.Repeating this particular stringency has, to
me, the aura not of rights, freedom, and equality – but of a Jacobean revenger’s
Janet Halley is Royall Professor of Law at Harvard Law School. You can reach her by e-mail at jhalley at law.harvard.edu.
Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); U.S. v. Windsor, 670 U.S. 744 (2013); Obergefell v. Hodges, 576 U.S. 644 (2015); Bostock v. Clayton County, 590 U.S. ___ (2020).
 Andrew Koppelman, Gay Rights vs. Religious Liberty?: The
Unnecessary Conflict (Oxford University Press, 2020).
 C.R.S. 14-2-104 (2000); Colo.
Const. Art. II, Section 31 (2006).In
2004 the Utah DOMA was declared unconstitutional by the Tenth Circuit.Kitchen v. Herbert, 755 F.3d 1193 (10th
Cir. 2014).Both Colorado DOMA’s remain
on the books.
Pub.L. 104–199, 110 Stat. 2419, enacted
September 21, 1996, 1 U.S.C. § 7 and 28
U.S.C. § 1738C.
Goodrich v. Massachusetts Department of Public Health, 798 N.E.2d
941 (Mass. S.J.C. 2003).
 For a relatively complete
account, see Masterpiece Cakeshop v.
Colorado Civil Rights Commission, 138 S. Ct, 1719, 1749 (2018) (Ginsburg,
Jack v. Gateaux, Ltd., Charge No. P20140071X (March 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge
No. P20140070X ( March 24, 2015); Jack v.
Azucar Bakery, Charge No 20140069X
(March 24, 2015).
Craig v. Masterpiece Cakeshop, 370 P.3d 272 (2015).
Masterpiece Cakeshop v. Colorado Civil Rights Commission, 28 WL
1645027 (Colo. S. Ct. April 25, 2016) (cert. denied), 137 S. Ct. 2290 (2017)
 Part 3 below shows that the
facts about this conversation are disputed, that Scardina herself gave
inconsistent accounts, and that the case may turn on which version is
accepted.Verified Complaint, Masterpiece Cakeshop v. Elenis, U.S.
District Court for the District of Colorado, August 14, 2018, p. 4.
Masterpiece Cakeshop, 138 S. Ct. 1723-48.Concurrences by Justice Kagan (joined by
Breyer), Gorsuch (joined by Alito), and Thomas (concurring only in part; joined
by Gorsuch), are all so wide of the mark set by the majority opinion (authored
by Kennedy) that they read like dissents.
 Verified Complaint, Masterpiece Cakeshop v. Elenis,United
States District Court for the District of Colorado, filed August 14, 2019, p. 37.
 Colorado Civil Rights Division,
Determination, Charge No. CP2018011310 (DATE).
 Complaint, Masterpiece Cakeshop v. Elenis. The
suit lay against the Director of the Civil Rights Division, each individual
sitting on the CCRC, and Colorado’s Attorney General and Governor.It sought injunctions barring further
proceedings against him, declarations holding him harmless under Colorado law,
and damages in the amount of $100,000 from the Director of the Civil Rights
Complaint, Phillips v. Elenis, pp. 3, 22, 26.See also Jack Phillips, “The Supreme Court
Let Me Live My Faith Again,” Wall Street Journal,
June 7, 2018.Checking the Wayback
Machine for https://masterpiececakes.com shows that the wedding cake page
provided a notice that wedding cakes were unavailable as early as January 8,
2018 (earlier iterations did not load), and that the notice was still there on April
27, 2020.As of this writing, no
subsequent captures are available.The
current webpage (searched July 14, 2020) does offer wedding cakes.
 Complaint, Scardina v. Masterpiece Cakeshop, District Court, City and County
of Denver, Colorado, June 5, 2019.
 Defendant’s Motion to Dismiss
Complaint under Colo. R. Civ. P. 12(b)(5) and 9(b), District Court, County of Denver,
Colorado, Masterpiece Cakeshop v. Elenis,
filed July 22, 2019; Order, Masterpiece
Cakeshop v. Elenis D. Ct. Colo. January 4, 2019).
 Sharon Marcus, “Fighting Bodies,
Fighting Words: A Theory and Politics of Rape Prevention,” in Feminists Theorize the Political, ed.
Judith Butler and Joan Scott (Routledge, 1992), pp. 385-403, 389.
Andrew Koppelman, “Gay Rights, Religious Accommodations, and the
Purposes of Antidiscrimination Law,” 88 S.
Cal. L. Rev. 619 (2015). Koppelman repeats the passage unchanged in Gay Rights vs. Religious Liberty?.Koppelman, p. 121.
 Shannon Gilreath and Arley Ward,
“Same-sex Marriage, Religious Accommodation, and the Race Analogy,” 41 Vt. L. Rev. 237, 256-57 (2016).
Id. at 15. Phillips indicated
in submissions to the Civil Rights Division that he had turned down 4 or 5
other same-sex couples seeking wedding cakes, while insisting that he always
offered to sell them other baked goods.Masterpiece Cakeshop v. CCRC, 138 S.Ct.
1718, Joint Appendix pp. 62-63, 66-68, 169.Craig allegedthat “one of these
couples had sought cupcakes and had been denied service],]” suggesting that
Phillips had misrepresented his practice.Johnson, “Meet the Gay Couple.”Craig is probably referring to the affidavit submitted by Stephanie
Scmalz, who swore that she and her female partner sought cupcakes from Phillips
for her commitment celebration.Joint Appendix 113-116.I am going to assume that Phillips correctly
described his business model and consistently followed it, pending more
reliable evidence that he didn’t.
 Complaint, Masterpiece Cakeshop v. Elenis, p. 16.
Masterpiece Cakeshop, 138
S.Ct. at 1736. Gorsuch proceeds to argue that “applying a
more generous legal test to secular objections than to religious ones” was not
a “neutral treatment of religion.”Gorsuch, p. 1736.He has a point.