Rethinking Religious Accommodations

For the symposium on Andrew Koppelman, Gay Rights vs Religious Liberty? The Unnecessary Conflict (Oxford University Press, 2020).

Janet Halley[1]

Romer, Lawrence, Windsor, Obergefell and now Bostock[2]: 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.

A 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?

In Gay Rights vs. Religious Liberty?: The Unnecessary Conflict,[3] 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.

To 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.

Part 1:  The Saga of Masterpiece Cakeshop

  

In 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.[4]  The federal government had its own DOMA.[5]  But Massachusetts had recognized same-sex marriage.[6]

Phillips 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 couple.

While 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.[7]  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?

Following 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.[8]

 

Phillips took his appeal to the Colorado Appeals Court, which affirmed.[9]  Certiorari was denied by the Colorado Supreme Court in April of 2016, and granted by the U.S. Supreme Court on June 26, 2017.[10]

  

That 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.[11]  Phillips explained that his religious beliefs barred him from making the cake.

According 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 them independently.

All 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.[12]

On 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.[13]

 

On June 4, 2018, the Supreme Court issued its ruling in the Craig and Mullins’s case.[14]  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. [15] The case was closed.  That same day Philips received this email from a person claiming to be “a member of the Church of Satan”:

I’m 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.[16]

Satan performing fellatio would of course also be among the images Phillips would never create.

Less 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,[17] thus commencing the CCRC’s review of the case.

 

In 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.[18]  The complaint disclosed that Phillips had closed down his wedding cake operation, causing the loss of 40% of his revenue and corresponding staff cuts.[19]

In 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.[20]  But Phillips’s Sisyphean labors were not done: Scardina promptly reframed her original complaint as a civil suit in Colorado trial court.[21]  Phillips’s motion to dismiss was almost entirely denied,[22] and the case is, as I write this, in discovery.

Part 2: Craig, Mullins, and the Scale of the Harm

The couple was, from an LGBTQ movement perspective, the ideal famous plaintiffs.  They gave hundreds of interviews, served as Grand Marshalls of Denver Pride,[23] and – looking fabulous in beautifully chromatic suits – kissed on the steps of the Supreme Court on the day of oral argument.[24]  They articulated the harm that they encountered at Masterpiece Cakeshop, scaling it up from a simple denial of service. 

First, they suffered shock and humiliation.  Craig to the queer press: “We were just mortified and embarrassed.”[25]  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.”[26] Both Munn and the young couple felt that they had failed each other.[27]  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.”[28]  It was a status injury manifested in pretty intense emotional suffering.

And second, the event had an extensive temporality, reaching into the past and across the future.  This took several forms.

One 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.[29]  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.

The 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’?”[30]   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.”[31] 

One 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.[32] There are other articulations of the harm, however, which Koppelman rejects. [33]    I admire this too, both because I think he’s right and because it has produced, and will produce, angry blowback.

Craig, 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.”[34]   Craig again: “[W]e’re standing up for these thousands of other people who are discriminated against all the time[.]”[35]   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.”[36]  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.[37]

 

It 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.[38]    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 care.”[39]   In 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.[40]  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.”[41]    He is arguing for a return to scale.

There 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.”[42]  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.

                                                                                                                                                                   The 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:

Freedom 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.[43]

The 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.  

Koppelman  devotes 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.[44]  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.

A 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.

 

Melissa 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.[45] As much as this massive shift is celebrated on the left, to the many elements on  the 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.”[46]

 

Murray explores several ways in which this could happen.  One is by the sheer proliferation of one-off exemptions:

[T]he 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 public life.[47]

 

Koppelman agrees with Murray that this outcome is unacceptable.[48]  But he believes that a narrow and burdened exemption can be designed to be so costly that very few would seek it.[49]  I think he’s right, though, below, I argue that it’s possible to devise a narrower and more heavily burdened one than  Koppelman’s.

 

More 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” [50]  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.” [51]  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.[52]

Again, 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.[53]  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.     

Part 3: Re-interpreting Jack Phillips

Jack 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).[54]  He strove to run a bakery that was pleasing to God.

The 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.”[55]   No contract to make a cake was final until Phillips personally approved it.[56]  On the day of the wedding, he would deliver the cake and set it up personally, greeting the couple and family.

Phillips 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.”[57]  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.” [58]  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. [59]

Because Phillips holds a religious belief “that all people are of equal dignity and worth,” he declines to make “cakes that demean people[,]”[60] 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.” [61]

  

Finally, 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.” [62]

Phillips’s 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.[63]  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.

Is there a left moral/political position that would accept  Phillips’s defense in this case? 

Koppelman 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.[64]  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?” 

Details 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[65]) 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.”[66]  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.[67]  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.

When 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.”[68]  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.[69]  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.’”[70]  Phillips told the Civil Rights Division that “he would not support a message that ‘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.[71]

In 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?

Part 4: What Rule?

Many 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)?

The 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.”[72]  I’ll call this an impact-only mental-state rule.    

I think a pro-gay leftist should prefer the more permissive rule.

If 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.

  

I would not extend the possibility of the more forgiving mental-state rule 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[73] – 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.

A 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 service” notice.

We 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.

 

I’ve 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.[74]  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?[75]

As 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.

Both 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. 

I 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-state rule 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.

At 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.

 

The 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. 

Both 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.

 

Here’s 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 subordinated groups.

Finally, 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?

Our 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 tragedy.

Janet Halley is Royall Professor of Law at Harvard Law School. You can reach her by e-mail at jhalley at law.harvard.edu.

---

[1] © Janet Halley. Thanks to Libby Adler, Aziza Ahmed, Karen Engle, and Jeannie Suk Gersen for comments, and to the HLS SCOTUS Lunch Workshop for a lively discussion of the earliest version of this paper. All errors of fact and judgment are mine alone.

[2] 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).

[3] Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020).

[4] 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 (10^th Cir. 2014).  Both Colorado DOMA’s remain on the books.

[5] Pub.L. 104–199, 110 Stat. 2419, enacted September 21, 1996, 1 U.S.C. § 7 and 28 U.S.C. § 1738C.

[6] Goodrich v. Massachusetts Department of Public Health, 798 N.E.2d 941 (Mass. S.J.C. 2003).

[7] For a relatively complete account, see Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct, 1719, 1749 (2018) (Ginsburg, J., dissenting).

[8] 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).

[9] Craig v. Masterpiece Cakeshop, 370 P.3d 272 (2015).

[10] Masterpiece Cakeshop v. Colorado Civil Rights Commission, 28 WL 1645027 (Colo. S. Ct. April 25, 2016) (cert. denied), 137 S. Ct. 2290 (2017) (cert. granted).

[11] 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.

[12] Id. pp. 36-37.

[13] Autumn Scardina, Charge of Discrimination, Colorado Civil Rights Division, filed July 20, 2917.

[14] Masterpiece Cakeshop, 138 S. Ct, 1719.

[15] 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.

[16] Verified Complaint, Masterpiece Cakeshop v. Elenis,United States District Court for the District of Colorado, filed August 14, 2019,  p. 37.

[17] Colorado Civil Rights Division, Determination, Charge No. CP2018011310 (DATE).

[18] 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 Division.

[19]   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.

[20] Chris Johnson, “New Agreement Ends Litigation against Masterpiece Cakeshop,” Watermark Online, March 6, 2019, available at https://watermarkonline.com/2019/03/06/new-agreement-ends-litigation-against-masterpiece-cakeshop/#more-254670.

[21] Complaint, Scardina v. Masterpiece Cakeshop, District Court, City and County of Denver, Colorado, June 5, 2019.

[22] 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).

[23] Eric Shorey & David Reddish, “David Mullins and Charlie Craig Stood Against the ‘Humiliation of Being Told We Don’t Serve Your Kind,’” Queerty, June 24, 2018, https://www.queerty.com/david-mullins-charlie-craig-stood-humiliation-told-dont-serve-kind-20180624.

[24] Jeremiah Ho, “Queer Sacrifice in Masterpiece Cakeshop,” 31 Yale J. of L. and Feminism 249, 292 (2020). 

[25] Laura Graves, “’This Happens All the Time’: Why a Gay Couple Took Their Case to the Supreme Court,” The Guardian, January 18, 2018.

[26] Debbie Munn, “How it Feels When Someone Refuses to Make Your Son a Wedding Cake,” Time, October 24, 2017, updated October 27, 2017.

https://time.com/4991839/masterpiece-cakeshop-supreme-court-gay-discrimination/.

[27] Munn, “How it Feels”; Chris Johnson, “Meet the Gay Couple at the Center of Masterpiece Cakeshop,” Washington Blade, November 21, 2017; https://www.washingtonblade.com/2017/11/21/meet-the-gay-couple-at-the-center-of-the-masterpiece-cakeshop-case/.  Allison Sherry, “After the Masterpiece Ruling, David Mullins and Charlie Craig Hope to Move on,” CPR News, June 11, 2018, https://www.cpr.org/2018/06/11/after-the-masterpiece-ruling-david-mullins-and-charlie-craig-hope-to-move-on/.

[28] Munn, “How it Feels.”

[29] Sherry, “After the Masterpiece Ruling.”

[30] Graves, “’This Happens All the Time.’”

[31]  Munn, “How it Feels.”

[32]  Koppelman, pp. 55-59.

[33] Koppelman, pp. 121-33.

[34] Graves, “This Happens All the Time.”

[35] Johnson, “Meet the Gay Couple.”

[36] Munn, “How it Feels.”

[37] Johnson, “Meet the Gay Couple.”

[38] 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.

[39]  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.

[40] Shannon Gilreath and Arley Ward, “Same-sex Marriage, Religious Accommodation, and the Race Analogy,” 41 Vt. L. Rev. 237, 256-57 (2016).

[41] Koppelman, p. 121.

[42] Shannon Gilreath, The End of Straight Supremacy: Realizing Gay Liberation (Cambridge University Press 2011), p. 252.

[43] Colorado Civil Rights Commission Meeting Held on July 25, 2014 In Re: Charlie Craig and David Mullins.v. Masterpiece Cakeshop, Transcript,, pp. 11-12.

[44] Koppelman, Chapter 2, “But now they denounce it as a mere excuse for bigotry,” pp. 21-31.

[45] Griswold v. Connecticut, 381 U.S. 479 (1965); Obergefell v. Hodges, 576 U.S. 644 (2015).

[46] Melissa Murray, “Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation,” 113 Northwestern University Law Review 825, 863 (2019).

[47] Id. at 879.

[48] E.g., Koppelman, p. 120.

[49] Koppelman, p. 120.

[50] Murray, “Consequential Sex,” at 881.

[51] Id. at 877-78.

[52] Id. at 881.

[53] Koppelman, p. 120-26.

[54] English Standard Version, at biblehub.com.

[55] Complaint, Masterpiece Cakeshop v. Elenis, p. 19.

[56] Id. at 18.

[57]  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 alleged   that “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.

[58] Complaint, Masterpiece Cakeshop v. Elenis, p. 16.

[59] Id. at 19.

[60] Id. at 16.

[61] Id. at 17.

[62] Id. at 18.

[63] Complaint, Scardina v. Masterpiece Cakeshop, p. 4.

[64] Koppelman, pp. 136-37.

[65] Civil Rights Division, Determination, p. 2.

[66] Complaint, Scardina v. Phillips, pp.4-5.

[67] Id. (emphasis added).

[68] Charge of Discrimination, Scardina v. Phillips.

[69] Civil Rights Division, Scardina v. Phillips, Determination, p. 2.

[70] Id.

[71] Id. at 3 (emphasis added)

[72]  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.

[73] Masterpiece Cakeshop, 138 S.Ct. at 1742-44.

[74] Janet Halley & Andrew Parker, After Sex?: On Writing Since Queer Theory (Duke Univesity Press, 2011).

[75] Koppelman asks the same question.  See Koppelman, Chapter 6, “A right to be weird is a good reason to give religion special treatment,” pp. 93-107, 125.