Douglas Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia. Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas (Minnesota). They filed an amicus brief in support of the baker in this case.
We approach Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission from the perspective of supporting same-sex marriage and supporting religious liberty. We reconcile the two, for disputes in commercial settings, with a narrow religious exemption for small, personalized businesses that conscientiously object to providing goods and services directly to the marriage (primarily through weddings). Masterpiece is simultaneously a huge win and a narrow win for such objectors.
It is huge because refusing an exemption on even these facts would have made further federal litigation essentially impossible, and it would have undercut claims under state constitutions and state Religious Freedom Restoration Acts as well as efforts to enact statutory exemptions.
So we avoided all that. And we avoided it 7-2, not 5-4 on the usual ideological lines. Justices Elena Kagan and Stephen Breyer joined the opinion in full, even though they immediately tried to qualify it in a separate opinion.
The ground of decision was narrow, but not as narrow as many commentators will claim. It is based exclusively on the free exercise clause; the Supreme Court did not rule on the free speech claim. Exclusive reliance on free exercise narrows the opinion to sincere religious objectors, excluding simple bigots. And it helps narrow the decision to religious contexts, with weddings as the overwhelmingly dominant example. The court made nothing of these points.
What more obviously narrows the decision is that the Supreme Court based it on the state’s hostility to the baker’s religious faith. As evidence, the court pointed both to hostile comments from members of the Colorado Civil Rights Commission and to the commission’s inconsistent treatment of religious discrimination and sexual-orientation discrimination.
In the most egregious of the hostile statements, one commissioner blamed religion and religious freedom for slavery and the Holocaust and added that “it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Supreme Court held such statements “inappropriate” in an adjudicatory body charged with “fair and neutral enforcement of Colorado’s anti-discrimination law.”
Views of this sort are very common among those opposed to religious exemptions from anti-discrimination laws. That is why states that enact religious liberty legislation often get boycotted. One of us has collected other examples. Enforcement authorities have now been warned not to state such views on the record, so the views will mostly go underground, but they will still drive decisions. It would not have helped to remand this case for a decision without the hostile statements. To remove the taint of those statements would require a wholly different set of decisionmakers.
States will find it harder to conceal the other evidence of anti-religious hostility. While Masterpiece was pending in the state adjudication process, a William Jack went to three different bakers and asked for cakes with religious symbols and quotations hostile to same-sex marriage. When the bakers refused to make the cakes, he filed claims of religious discrimination. The commission found no discrimination in these cases, and what it said about these protected bakers was inconsistent with what it said about Masterpiece and its owner, Jack Phillips.
The Supreme Court emphasized two such inconsistencies. The commission said that any message from the same-sex wedding cakes would be the customer’s message, not Phillips’; it did not say that with respect to the protected bakers, and the Colorado Court of Appeals clearly implied that the protected bakers could understand themselves as morally responsible for the message on the cakes. The commission said that the protected bakers’ willingness to make other cakes with Christian themes for Christian customers was exonerating, but that Jack Phillips’ willingness to make other cakes for LGBT customers and same-sex couples was irrelevant.
More fundamentally, the commission said that refusing to make a cake with a message celebrating same-sex marriage discriminated on the basis of the sexual orientation of the customer requesting that message, but that refusing to make a cake with a religious message opposing same-sex marriage did not discriminate on the basis of the religion of the customer requesting that message.
The inconsistent treatment of the two sets of cases got some attention in Phillips’ brief, and further elaboration in the amicus brief that we filed for eight Christian and Jewish organizations. We offered these inconsistencies to show that the Colorado law, as interpreted and enforced, is not “neutral and generally applicable” under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. If (as authoritatively interpreted) it had an exception for the protected bakers, then it must have an exception for bakers with religious objections. Refusing a religious exception while allowing even one or a few analogous secular exceptions shows that the state treats religious needs and commitments as less important, less deserving of exemption, than secular needs or commitments.
What the Supreme Court said was different but may ultimately come to nearly the same place. The court said that the inconsistent treatment of Phillips and the protected bakers showed hostility towards Phillips’ religious faith. Colorado had violated its duty “not to base laws or regulations on hostility to a religion or a religious viewpoint.” The state must “proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.” The commission had been “neither tolerant nor respectful”; it had proceeded on the basis of “a negative normative ‘evaluation of the particular justification’ for his objection” (quoting Lukumi).
There is a practical holding and an ideal holding here. The practical holding is that the unequal treatment of Phillips and the protected bakers is evidence of unconstitutional hostility. Conscientious objectors embroiled in litigation will have to send testers to smoke out uneven enforcement of anti-discrimination law. We expect that states are unwilling to require socially liberal vendors to produce goods with conservative religious messages they find offensive or against their conscience. If that is so, then those states cannot require religiously conservative vendors to produce goods in violation of their conscience.
The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.
But a requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.
Those manipulations began in the state’s briefs and in the concurring and dissenting opinions. Kagan and Breyer said that the state’s discrimination could easily have been justified with a different explanation: The protected bakers would not have sold an anti-gay cake to anybody, but Phillips would sell wedding cakes to opposite-sex couples.
As Justice Neil Gorsuch explained, this reaches the preordained result by manipulating the level of generality. An “anti-gay” cake is distinguished only by what it displays on the outer surface. So the category is not cakes, or wedding cakes, but cakes with particular messages. If a same-sex couple wants a cake with two grooms, two brides, a rainbow, or any other indication of approval of same-sex marriage, that is a cake that Phillips would not sell to anybody. If they want a cake that could just as appropriately be used for an opposite-sex wedding, then at the surface, Kagan’s rationalization holds — but it is still a rationalization. Everyone would still know what is really going on: The commission agrees with the protected bakers and disagrees with Jack Phillips.
Masterpiece states an important ideal. But the Supreme Court has not been good over the years at identifying government bias or hostility that is the least bit shrouded. In a case without smoking-gun expressions of hostility, objectors will need evidence of inconsistent treatment of tester cases.
If the state has not treated similar cases inconsistently, then it will probably satisfy the First Amendment standard of “neutrality and general applicability.” Objectors in that situation will have to rely on state RFRAs or state constitutions, claims that the Supreme Court has no power to review. But the cases will still pose the larger issue: Should conscientious objectors to same-sex marriage be protected from participation in same-sex weddings? We still think they should, when the business is small and personal and ample alternative providers exist (as they nearly always do). Such an exemption means that same-sex couples will very occasionally be referred elsewhere and feel insulted and demeaned. But without such an exemption, conscientious objectors like Jack Phillips must permanently surrender either their conscience or their occupation. A narrow exception to gay-rights laws, in a religiously significant context of intense importance to conscientious objectors, holds the best hope of protecting both sides.