Richard Epstein is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law at the Hoover Institution. He contributed to an amicus brief of law and economics scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
Today, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court issued a narrow decision that commanded the support of seven justices. The main opinion was written by Justice Anthony Kennedy, who in 2015’s Obergefell v. Hodges held that the equal protection clause protects the right of same-sex couples to marry. Yet in this instance, he partially reversed field, by allowing, at least for the moment, Jack Phillips, the proprietor of Masterpiece Cakeshop, to refuse to design and create a custom wedding cake for the same-sex wedding celebration of Charlie Craig and David Mullins in 2012, when same-sex marriages were not yet legal in Colorado.
Although the outcome of the case is welcome, its threadbare reasoning leaves much to be desired. The correct way to deal with this issue, as I have argued at length elsewhere, is to ask whether the antidiscrimination laws of Colorado that prohibit discrimination on grounds of sexual orientation should apply to a baker who believes in good faith that it violates his sincere religious beliefs to “design or create” a wedding cake for a same-sex wedding. Phillips was neither careless nor inattentive in articulating his concerns. He made it crystal clear, as Kennedy noted, that he was prepared to provide Craig and Mullins any goods from his shop for any other occasion, or indeed any standardized goods that they needed for their wedding celebration. There is not the slightest hint here that Phillips overstated his objections in order to avoid dealing with gay individuals, whose business he has actively sought on many other occasions.
On the strength of this simple fact, the Supreme Court’s decision should have protected Phillips’ constitutional rights of religion and speech, even if the general prohibition of the Colorado Anti-Discrimination Act on matters of sexual orientation otherwise remains in force. To see why, contrast the situation here with that in Obergefell. The traditional definition of marriage as the union of one man and one woman imposes a flat prohibition against the ability of any same-sex couple to marry. It is for that reason that the libertarian approach (wholly apart from the soundness of Obergefell’s equal protection argument) rejects the proposition that the state can block by force the union of two such willing partners. But the antidiscrimination law imposes no such barrier on the ability of any couple to marry, for the refusal of any individual to serve another in a competitive marketplace means that the harm suffered by the couple is the well-nigh trivial cost of finding one of 67 nearby bakeries which advertised their willingness to design cakes for same-sex weddings. In contrast, the burden imposed on Phillips for the exercise of his rights of religion and speech includes the loss of his business license, heavy fines and mandatory participation in various re-education programs suitable only in totalitarian regimes.
Craig and Mullins seek to raise the ante when they proclaim that “no one should have to face the shame, embarrassment, and humiliation of being told ‘we don’t serve your kind here’ that we faced.” But that hyperbolic statement fails to acknowledge the limited nature of Phillips’ refusal, and it wholly overlooks the shame, embarrassment and humiliation, and outright intimidation and abuse, that their vocal supporters are willing to inflict on Phillips for the exercise of his religious and expressive beliefs. While Craig and Mullins are blessed with multiple choices if CADA does not apply, Phillips has no place to run if it does.
A clear ruling backing Phillips would have cleared the air. The needed exception applies to only a trivial fraction of cases covered by CADA, but it provides religious individuals all the protection they ask for, given that they have no desire to mount a general campaign against gay and lesbian couples. But instead of reaching a principled decision in this case, Kennedy cobbled together his seven-member majority by writing an amorphous opinion that shows a lack of both intellectual clarity and moral courage. The simplest way to see this is to note that no one can say today what happens next. The final sentence of Kennedy’s opinion limply concludes, “The judgment of the Colorado Court of Appeals is reversed”—full stop. So does the Colorado commission have to walk away? Or can it reopen its investigation? What happens to other actions before this commission or similar bodies?
The reason that no one can say what will happen is that Kennedy’s opinion attaches inordinate significance to inessential details that should have been ignored in any serious opinion. He thus notes that this incident occurred in 2012, before same-sex marriage was legal in Colorado or protected under the equal protection clause to the United States Constitution. Are we to infer from this tidbit that the case should come out differently now that same-sex marriage enjoys constitutional protection everywhere? I can think of no reason why the correct balance should be altered by this detail. Yet the legions of enterprising state courts can now say that Masterpiece Cakeshop is irrelevant to any complaints that have arisen since Obergefell came down.
Worse still, Kennedy’s shapeless opinion makes the entire outcome of this particular case turn on the overt hostility that the Colorado commission showed toward Phillips throughout the proceedings. That abusive behavior is good reason to sack the commissioner who said in the course of a public hearing, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust.” Hitler did not kill 6,000,000 Jews by refusing to patronize Jewish bakers. The commissioner’s disgraceful statement highlights the serious danger of using specialized tribunals filled with zealots to decide sensitive issues better left to courts of general jurisdiction. And, more generally, it leaves open the question of what happens next time, if a commissioner tones down this virulent form of opposition, but echoes the outsized and one-sided claims of “shame, embarrassment and humiliation” that can always be invoked to limit religious liberty and freedom of speech. There is no hint whatsoever as to what softened statements, if any, by the next commission, will trigger the hostility test, and certainly no indication of whether and if so how any commissioner can be cross-examined to learn if they consciously harbor latent hostility on this issue. Nothing is worse for the administration of justice than to let any decision hinge on the indeterminate mental state of some public official.
Finally, Kennedy appears to make the decision in this case turn on the arguable inconsistency of the Colorado commission when it decided on three separate occasions that a baker was justified in his refusal to bake for one William Jack “cakes with images that contained disapproval of same-sex marriage, along with religious text.” Is this a refusal to deal on grounds of religion in violation of CADA? As a matter of first principle, everyone should applaud those three bakers, but the harder question is whether the Colorado commission engaged in impermissible viewpoint discrimination when it allowed these bakers not to serve customers whose views it found offensive, while sanctioning Jack Phillips, whose beliefs the commission finds utterly distasteful.
Notwithstanding these difficulties, Kennedy hangs on to the convenient peg that the Colorado commission may have been guilty of viewpoint discrimination on matters of speech on the one hand, and a violation of the principle of religious neutrality on the other. There is, happily, at least of whiff of displeasure in Kennedy’s opinion of one of the late Justice Antonin Scalia’s worst opinions, 1990’s Employment Division, Department of Human Resources of Oregon v. Smith, which stands for the untenable proposition that all facially neutral laws do not offend the protection of free speech, even if they have a known and massive disparate impact on the exercise of religious liberties.
Smith is desperately wrong because it does not understand the need for making workable accommodations between general public laws and religious liberties. These accommodations will always fail if they are done on hopelessly ad hoc grounds that create unneeded uncertainty. Each of the three concurring opinions (by Justices Elena Kagan, Clarence Thomas and Neil Gorsuch) tries to put its own spin on the Supreme Court’s handiwork, which only compounds the uncertainty that is pushed off until another day. Judicial minimalism may sound nice in theory. But where the court is faced with a clear question of high principle, the whole nation loses when it is handled in a muddled and ham-handed way. The Cakeshop fiasco needs to be put behind us. A decision that gives blanket exceptions for religious liberty on grounds of sincere belief does all that is needed to protect religion while leaving the basic structure of CADA intact. Pity that this Supreme Court decision opens yet another chapter in the endless culture wars.