The “Gay Cake” Supreme Court Decision: Not A Judicial Masterpiece

Martin Naunov, Middlebury class of ’17, used the Masterpiece Cakeshop case in his senior honors thesis to explore the potential conflict between equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech.  Here he reacts to the Supreme Court’s decision, handed down on Monday, in the Masterpiece case.

On Monday, the U.S. Supreme Court handed down its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the same-sex wedding cake case. The decision? Far less sweeping than some had hoped but not as distinctly insignificant as some others maintain.


As I have explained in greater detail in an earlier post, Masterpiece invited the Court to strike a balance between two exalted, but sometimes conflicting, principles: equal treatment or anti-discrimination on one hand and free exercise of religion on the other.

The substantive questions that the case presented can be stated as follows: Does the Constitution require that religious wedding vendors be exempted from the scope of the public accommodation laws? Does compelling a wedding vendor—say a baker, a florist, or a photographer—to provide their wedding services on equal basis irrespective of the customer’s sexual orientation contravene the Free Exercise or the Free Speech Clause of the First Amendment?

As most newspapers’ headline make clear, the 7-2 Masterpiece majority sided with the religious baker. What these headlines make less clear, however, is that in actuality, the Court sided with no one on the substantive questions. Monday’s decision did not settle the tension between freedom of speech and religion and non-discriminatory treatment of the historically marginalized LGBT community.

The Court, in other words, did not answer the question whether wedding vendors have the First Amendment right to decline services for same-sex wedding ceremonies; and to the extent that it did, the answer is in the negative. Although “religious…objections are protected,” the majority opinion affirmed, “it is a general rule that such objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ministerial exception can be assumed, the opinion continued, “yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws.”

The Court sided with the baker by equivocating. Justice Kennedy hedged on the question whether Mr. Phillips had a First Amendment right to decline his services for same-sex weddings; however, Mr. Phillips certainly had the First Amendment right to “neutral and respectful consideration” of his religious liberty claims. This principle, the Court found, was “compromised” by the Colorado Civil Rights Commission’s “treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The inference of religious animus was twofold. First, the Court found unacceptable certain remarks made by some of the commissioners. According to one of the commissioners, for example, “we can list hundreds of situations where freedom of religion has been used to justify discrimination…whether it be slavery, whether it be the holocaust…And to me it is one of the most despicable pieces of rhetoric that people can use…to hurt others.” I suspect many people—religious people like myself included—would find this remark to be largely innocuous and perhaps fair, even if somewhat overstated. To the Court’s swing Justice, however, it was unacceptable—clear evidence that the Commission’s deliberation was tainted by religious animus.

It may merit mentioning that conservative newscasts have been fulminating against the above remark long before Monday. In fact, when I talked to one of Mr. Phillips’ lawyers after December’s oral arguments, this comment was one of the very first issues she brought up.

In any event, the Court found another sign of religious animus in the discrepancy in the Commission’s treatment of Masterpiece versus three other cases where bakers declined to create cakes with religious text and images condemning same-sex marriage. A rationale might exist, the majority acknowledged, to differentiate these cases. Therefore, the issue is not the constitutional soundness of the differing outcomes—the other three bakers, unlike Mr. Philips, prevailed—but, rather, the differing level of respect with which the bakers’ conscience objections were treated. Namely, in Masterpiece, the Commission approached differently the element of attribution—Is the baker merely ‘a conduit’ of their customer’s message or is the message attributable to him? —and the argument that the bakery was willing to sell other products to the rejected customers.


Although constrained in its capacity to serve as a precedent in deciding the substantive questions in other cases of LGBT discrimination by wedding vendors, Masterpiece could prove to be nontrivial in its interpretation of Smith. This element—the Court’s treatment of Free Exercise doctrine—seems to have eluded many legal commentators.

Smith, which controls Free Exercise jurisprudence, pronounced the following rule for determining whether the challenged regulation contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” In other words, according to Smith, as long as the law in question is a neutral law of general applicability that does not target a specific religion or religious practice, it should be reviewed under the “rational basis” standard.

The Smith decision did not, however, mean that the Court would absolve from strict scrutiny those laws that are not neutral or generally applicable. The Court made this clear in Lukumi, the precedent that the majority opinion in Masterpiece largely relies on.

In Lukumi, however, it was the very purpose of the law that was tainted by religious animus. Namely, soon after Santeria followers—known for practicing animal sacrifice—expressed an intent to establish a church in Hialeah, Florida, the city council enacted three ordinances that banned the sacrificial killing of animals. The city argued that the ordinances aimed to protect the public health and prevent animal cruelty. However, the ordinances banned almost exclusively Santeria rituals. Florida permitted almost every type of animal killing (e.g. for medical research) except for religious sacrifice; even with ritual killings, it exempted the ritual slaughter of animals by some other religions, such as kosher slaughter. It was obvious that the goal of the ordinances was suppression of Santeria religion’s central component. Hence the Court struck it down.

No such situation is present in Masterpiece. Public accommodation laws do not belong to the “purposeful discrimination” category that the Court found in Lukumi. Colorado’s Anti-Discrimination Act (CADA) does not condone discrimination on the basis of sexual orientation by one religion (say Muslims) but not by another (say Jews). The law applies to both home-based bakers and those who have a stand-alone store; it applies to both luxurious restaurants and Safeway stores.

The Court’s Masterpiece analysis, therefore, which subjected a formally neutral law under a level of scrutiny clearly harsher from the extremely deferential rational basis test required by Smith, is a milestone in its own right. It is possible that Masterpiece would amount to an anomaly, but the “gay cake case” could also prove to be an important precedent in future religious liberty cases. Somewhat paradoxically, this largely depends on whether the conservative-leaning Court decides to move away from Justice Scalia’s emphasis of formal neutrality and closer to Justice Brennan’s requirement for substantive neutrality—one that is concerned not only with the purpose of the challenged law but also with its application and effects on conscientious objectors.

Masterpiece, to conclude, ended up being quite insipid, but it did give Smith some bite.


Mission Accomplished! But On Whose Authority, And To What End?

By now, most of you have heard that Great Britain, France and U.S military forces combined to strike three Syrian chemical weapons facilities earlier this morning (about 4 a.m. Syrian time).  The strikes were in response to the reported use of chemical weapons, most likely chlorine gas and the sarin nerve agent, by the Assad regime against its own citizens in rebel-held areas. According to the just-concluded joint State Department and Pentagon press briefing, coalition forces, including surface ships, submarines and aircraft, launched a total of 105 weapon strikes, largely destroying the targets. At this point it is unclear how many, if any, casualties (military or civilian) the strikes inflicted.  Pentagon officials say that prior to the attacks, “deconfliction” channels were used to warn Syria’s ally Russia that the strikes were imminent, although no specific logistical details regarding the timing or the nature of the attacks were conveyed.  Syrian air defenses were deployed but – again, according to Pentagon briefing – the Syrian efforts were ineffective, with some (most?) of their anti-missile launches coming after the targets had been hit.  To this point, there has been no sign of Russian involvement in the Syrian response.

The decision by President Trump to launch the retaliatory strikes immediately raises two important questions.  First, under what authority did he order the strikes?  Second, what was their objective, and was it accomplished?  In what can be considered either a blatant “eff-you” to his critics (and to the gods), or a demonstration of historical ignorance, Trump issued the following tweet this morning:

Donald J. Trump‏Verified account @realDonaldTrump 2h2 hours ago

A perfectly executed strike last night. Thank you to France and the United Kingdom for their wisdom and the power of their fine Military. Could not have had a better result. Mission Accomplished!”

For most of us, of course, the “Mission Accomplished” tagline immediately invokes memories of the banner placed by sailors in May, 2003, on the U.S.S. Abraham Lincoln. That banner served as the backdrop to President Bush’s announcement from the ship’s deck that we had reached the end of “major combat operations” in Iraq.  As we now know, within a couple of years a full-scale insurgency broke out in Iraq which led to the U.S. recommitting military forces.  The “Mission Accomplished” banner became a symbol of a military intervention gone wrong.

While social media had a field day with Trump’s brazen proclamation, it is worth considering what mission he believes the strikes accomplished.  In the days before the Assad regime (allegedly) gassed its own people, Trump had publicly voiced his desire to get U.S. military forces out of Syria – echoing promises he had made (to generally favorable audience responses) during the 2015-16 presidential campaign. The primary reason for military intervention in the region, he argued, was to defeat ISIS and that goal was, essentially, achieved.  However, although the talking heads on cable and social media made much of the seeming inconsistency between Trump’s professed desire to leave Syria and the subsequent air strikes, the reality is that a suspected chemical attack took place between those two events.  It’s worth recalling that Trump’s predecessor Barack Obama, in a 2013 press conference, stated, “We have been very clear to the Assad regime, but also to other players on the ground, that a red line for us is we start seeing a whole bunch of chemical weapons moving around or being utilized.  That would change my calculus.  That would change my equation.” To be sure, a full read of Obama’s remarks suggests the “red line” might have referred to evidence that the Assad regime had lost control over its chemical weapons, instead of marking their use as unacceptable. Ultimately, when Assad did use chemical weapons, Obama argued that the U.S. should take military action, but he also chose to let Congress decide whether to authorize a military response – a choice undoubtedly made with the realization that Congress was unlikely to agree on how to act.  That type of lawyerly reasoning did not endear Obama to everyone, but it did effectively preclude a potential debate over the extent of his war-making powers.

No matter how one interprets Obama’s words, it is apparent that for Trump, Syria’s use of chemical weapons constitutes crossing his own red line, as he made clear a year ago in ordering a limited missile strike against a Syrian airfield used by Assad to launch a previous chemical strike. In this way Trump has decided to push the expanse of presidential power, whereas Obama held back.  So what did Trump hope to accomplish with these latest strikes?  The joint State-Pentagon briefing this morning was instructive.  Both State Department Assistant Secretary for Public Affairs Dana White and the Joint Chiefs Director Kenneth McKenzie made clear in response to persistent questioning that the goal was to deter further use of chemical weapons by the Syrian government.  They consistently refused to engage in any discussion about the impact of the strikes on the Syrian civil war.

Did Trump accomplish this mission? Will the strikes deter Assad from further use of chemical weapons?  The answer to that question will go a long way to determining how one should respond to the second issue I raised above: does Trump have the authority to launch these strikes on his own?  In the aftermath of the latest strikes, as they did after the previous strikes, journalists and pundits have been eagerly parsing the relevant statutes and constitutional provisions to explain why Trump does, or does not, have this authority.  The reality, however, as the late, great presidential scholar Richard Neustadt reminded us in his classic study of the Presidency: “The probabilities of [presidential] power do not derive from a literary theory of the Constitution.”  What Neustadt meant is that a close textual reading of the Constitution, and related statute cannot – by itself – determine the answer to this question, because these texts only provide formal vantage points from which the relevant actors – in this case, the President, Congress, and the Courts, will do battle. The relevant documents do not, by themselves, determine the victor. In this regard, Neustadt was a Hamiltonian; he believed the Constitution, and the nation, was best served by a president who constantly sought to expand the boundaries of his formal powers until he bumped up against determined opposition. As Neustadt put it, “The more determinedly a President seeks power, the more he will be likely to bring vigor to his clerkship. As he does so he contributes to the energy of government.”

To be sure, the Framers of the Constitution could not have anticipated the demands placed on our political institutions by modern warfare.  But the Trump administration’s evoking of its Article II “executive power” to protect national interests as a justification for the missile strikes is a reminder that the Constitution has proved to be a remarkably adaptable document.  Presidents are constantly pushing its boundaries, trying to expand their implied powers, until someone – Congress? the Courts? – pushes back. Some see this as a weakness, and would prefer more clearly stated restrictions on a president’s war-making powers. However, as we can see with the limited impact of the War Powers Resolution, which has never been effectively evoked, beyond compliance with its reporting requirements, it is difficult to legislate limits to presidential power in this area. In Madison’s words, “parchment barriers” (Federalist 48) haven’t proved to be a very useful limit on presidential war making. (If press reports are accurate, Trump complied with the reporting requirements of the War Powers Resolution, at least in principle, by informing congressional leaders, of his intentions to launch military strikes.)

So what has worked? Politics.  History suggests that limits on presidents’ capacity to engage in military action are a function of how well Congress is able to push back against presidential war making, and whether the public, broadly speaking, sides with the legislative body.  And, for better or for worse, that calculus will depend in part on assessments regarding whether the missile strikes were justified, and whether they achieved their goal.  In this regard, Vermont’s Democratic congressional contingent condemned Assad’s use of chemical weapons, but also questioned Trump’s authority to launch air strikes, while not fully repudiating the strikes themselves. This is the type of careful political calculus that the nation’s lawmakers must make in the next hours and days.  Their collective decision, in turn, will provide cues to how the public ultimately responds to Trump’s actions.  But the public’s response will also be conditioned in part by what impact the strikes have on Assad’s use of chemical weapons, as reported by the media.

Trump has acted, citing his Article II “executive power” to protect the national interest. Undoubtedly, some will claim that this is an unprecedented, and thus unconstitutional, increase in the president’s war-making capacity based on an expansive and unjustified reading of Article II.  Others will argue it is entirely consistent with Hamilton’s conception of an “energetic” president leading the War against Terror, based on prerogative powers implied by Article II. Who is right?  It is important to realize that there is no “correct” answer to this as determined by a careful reading of relevant statutes.  Instead, the Framers expected these questions to be resolved through the political process.  Historically, presidents have often sought to expand their prerogative powers to protect the nation, as implied by Article II.   Congress has not always agreed with these efforts, although they have frequently been content to let presidents assert their expanded power, and have waited to see how that power is used, and whether the outcome it is ratified by the public.  As Neustadt put it,”The need of others for a President’s initiatives creates dependence on him. Their dependence becomes his advantage. Yet he can only capture the advantage as he meets the need.”

Has Trump effectively met that need? Has he used his pursuit of power in a way that energizes the government for the greater good?  Let the debate begin!

On Presidents Day, We Celebrate The Guardian of the Presidency

It is Presidents Day – a time to repost my traditional column commemorating the late, great Richard E. Neustadt. This year the post seems particularly timely, given the controversy surrounding our current President – especially the fear that his authoritarian tendencies will undermine the presidency and the Constitutional order.  As I hope becomes clear by reading this post, I suspect Neustadt would have a different, but not less worrisome, reaction to Trump’s presidency.

Until his death in 2003 at the age of 84, Neustadt was the nation’s foremost presidency scholar.  In his almost six decades of public service and in academia, Neustadt advised presidents of both parties and their aides, and distilled these experiences in the form of several influential books on presidential leadership and decisionmaking.  Perhaps his biggest influence, however, came from the scores of students (including Al Gore) he mentored at Columbia and Harvard, many of whom went on to careers in public service.  Others (like me!) opted for academia where they schooled subsequent generations of students in Neustadt’s teachings, (and sometimes wrote blogs on the side.)

Interestingly, Neustadt came to academia through a circuitous route that, unfortunately, is rarely used today. After a brief stint in FDR’s Office of Price Administration, followed by a tour in the military, he returned to government as a mid-level career bureaucrat in President Harry Truman’s Bureau of the Budget (BoB) in 1946, gradually working his way up the ranks until he was brought into Truman’s White House in 1950 as a junior-level political aide.  While working in the BoB, Neustadt took time to complete his doctoral dissertation at Harvard (working from Washington), which analyzed the development of the president’s legislative program.  When Truman decided not to run for reelection in 1952, Neustadt faced a career crossroads. With the doctorate in hand, he decided to try his hand at academia.

When he began working his way through the presidency literature to prepare to teach, however, he was struck by just how little these scholarly works had in common with his own experiences under Truman.  They described the presidency in terms of its formal powers, as laid out in the Constitution and subsequent statute.  To Neustadt, these formal powers – while not inconsequential – told only part of the story.  To fully understand what made presidents more or less effective, one had to dig deeper to uncover the sources of the president’s power. With this motivation, he set down to write Presidential Power, which was first published in 1960 and went on to become the best-selling scholarly study of the presidency ever written. Now in its 4th edition, it continues to be assigned in college classrooms around the world (the Portuguese language edition came out a few years back.) Neustadt’s argument in Presidential Power is distinctive and I certainly can’t do justice to it here.  But his essential point is that because presidents share power with other actors in the American political system, they can rarely get things done on a sustained basis through command or unilateral action. Instead, they need to persuade others that what the President wants done is what they should want done as well, but for their own political and personal interests.  At the most fundamental level that means presidents must bargain. The most effective presidents, then, are those who understand the sources of their bargaining power, and take steps to nurture those sources.

By bargaining, however, Neustadt does not mean – contrary to what some of his critics have suggested – changing political actors’ minds.  As I have written elsewhere, Neustadt does not mean that presidents rely on “charm or reasoned argument” to convince others to adopt his (someday her) point of view. With rare exceptions, presidential power is not the power to change minds. Instead, presidents must induce others “to believe that what he wants of them is what their own appraisal of their own responsibilities requires them to do in their interests, not his.” That process of persuasion, Neustadt suggests, “is bound to be more like collective bargaining than like a reasoned argument among philosopher kings.”

At its core, Presidential Power is a handbook for presidents (and their advisers). It teaches them how to gain, nurture and exercise power. Beyond the subject matter, however, what makes Neustadt’s analysis so fascinating are the illustrations he brings to bear, many drawn from his own personal experiences as an adviser to presidents. Interestingly, the book might have languished on bookstore shelves if not for a fortuitous event: after his election to the presidency in 1960, President-elect John F. Kennedy asked Neustadt to write transition memos to help prepare him for office. More importantly for the sale of Neustadt’s book, however, the president-elect was photographed disembarking from a plane with a copy of Presidential Power clearly visible in his jacket pocket.  Believe me, nothing boosts the sale of a book on the presidency more than a picture of the President reading that book!  (Which reminds me: if you need lessons about leading during a time of crisis, President Trump, I’d recommend this book. Don’t forget to get photographed while reading it!)

But it takes more than a president’s endorsement to turn a book into a classic, one that continues to get assigned in presidency courses today, more than two decades after the last edition was issued.  What explains Presidential Power’s staying power? As I have argued elsewhere, Neustadt’s classic work endures because it analyzes the presidency institutionally; presidential power, according to Neustadt, is primarily a function of the Constitutionally-based system of separated institutions sharing power.  That Constitutional grounding makes Neustadt’s analysis of continuing relevance.   And while many subsequent scholars have sought to replace Neustadt’s analysis with one of their own, for the most part they end up making his same points (although they often don’t acknowledge as much) but not nearly as effectively.

Neustadt was subsequently asked to join Kennedy’s White House staff but – with two growing children whom had already endured his absences in his previous White House stint – he opted instead to stay in academia.  He went on to help establish Harvard’s Kennedy School of Government, wrote several more award-winning books, and continued to advise formally or informally every president through Clinton. After the death of Bert, his first wife, he married Shirley Williams, one of the founders of Britain’s Social Democrats Party (and now a Baroness in the House of Lords), which provided still another perspective on executive politics.  He also continued churning out graduate students (I was the last doctoral student whose dissertation committee Neustadt chaired at Harvard.). When I went back to Harvard in 1993 as an assistant professor, my education continued; I lured Neustadt out of retirement to co-teach a graduate seminar on the presidency – an experience that deepened my understanding of the office and taught me to appreciate good scotch.  It was the last course Neustadt taught in Harvard’s Government Department, but he remained active in public life even after retiring from teaching.  Shortly before his death he traveled to Brazil to advise that country’s newly-elected president Lula da Silva.

What might Neustadt make of the Trump presidency?  That is a topic worthy of a separate post.  But I suspect that in contrast to many of my political science peers, who have expressed a fear that Trump’s authoritarian tendencies pose a threat to the Constitutional order, Neustadt would have a different concern:  that Trump’s inexperience – compounded by his initial decision to surround himself with equally inexperienced aides – has led to an exceptionally weak presidency, one unable to provide the energy and institutional stiffening that Neustadt believed was indispensable for making our system of shared powers work toward solving national problems.  To be sure, that weakness might yet lead a frustrated president to lash out against his political enemies, and to engage in extraconstitutional actions that could further weaken the presidential office. If so, my colleagues’ fears may yet be realized. For now, however, I suspect Neustadt would worry not that Trump’s presidency was too powerful – but that it was not powerful enough.

In the meantime, take time today to hoist a glass of your favorite beverage in honor of Richard E. Neustadt, our own Guardian of the Presidency. If you are interested in learning more about him, there’s a wonderful (really!) book available on edited by Neustadt’s daughter and that blogger guy from Middlebury College (see here). It contains contributions from Doris Kearns Goodwin, Al Gore, Ernie May, Graham Allison, Ted Sorensen, Arthur Schlesinger, Jr., Harrison Wellford, Harvey Fineberg, Jonathan Alter, Chuck Jones, Eric Redman, Beth Neustadt and yours truly.

Here’s to you,  Dick!


The State of the Union, According To Trump! Hallelujah (Sort of)!

The fact that the usual suspects responded in the usual ways to President Trump’s State of the Union speech does not make their analyses wrong – it just makes them predictable, and thus a less useful barometer for how the speech played outside the NYC-DC pundit beltway.  Initial polling by CBS suggests that it was received relatively favorably by those who watched it – fully 75% of respondents “approved” of the speech – although it is worth remembering that audiences for these speeches are a self-selected group – something I was reminded of at my weekly politics luncheon yesterday when almost all of my “senior” (and left-leaning) students informed me they had no intention of watching Trump’s address. In this vein according to CBS, only a quarter of those they surveyed identified as Democrats – presumably they made up the bulk of those who disapproved. (My current undergraduates, on the other hand, promised that they would watch the speech – cue surprise quiz!) It is not clear as yet how large the television audience was, but for what it is worth Twitter reported that, fittingly, the Tweeter-in-Chief’s speech was the most tweeted about State of the Union speech to date.  Focus groups also reacted in a somewhat positive manner to the speech, although sentiments were by no means uniform.  Of course, public opinion may shift during the next few days in response to how the speech is characterized by cable news talking heads and other pundits. If a dominant theme or characterization of Trump’s speech takes hold, it can alter public perceptions at the margins.

If there is anything pundits might agree on, it is that Trump’s speech was long – one of the longest such speeches in history, according to some sources, clocking in at about an hour and 20 minutes, or only slightly shorter than Bill Clinton’s 2000 SOTU.  Surprisingly – at least to some – he appeared to stay on script, more or less, although at times he seemed to dare Democrats in the audience to take issue with what he was saying.  For the most part, however, they were content to sit on their hands and glower, with the exception of some scattered booing when Trump purported to explain what “chain migration” meant.  Who knows how he might have reacted had a Democrat accused him of lying, for example?

Perhaps we should not have been surprised by his restraint; as I reminded my hosts in my pre-speech interview with KCBS radio when they asked me whether Trump would go off script, he proved quite disciplined in his first address to a joint session of Congress last year.  So there was precedent for him to recognize and rise to the gravity of the moment, and to resist giving in to his coarser, bullying twitter-driven persona. Moreover, his delivery last night was relatively smooth and somewhat understated, with little of the nasal snorting that occasionally mars his public addresses.  For the most part, he directed his remarks toward his left, where the Republican majority sat, and only turned right when he expected Democrats to respond positively to something he was saying.  Republicans, in turn, reacted in a quite favorable – at times almost giddy – manner, standing and wildly applauding at all of the scripted moments, and for some unscripted ones as well judging by Trump’s evident surprise at their response. As far as one can judge from audience reactions, this speech was a huge hit with them, which of course made Democrats glower all the more.

While some critics noted the lack of detail in his discussion of policy, particularly in reference to his call for legislation totalling $1.5 trillion in spending on infrastructure, Trump correctly recognized that State of the Union addresses are best remembered for the thematic chords they strike, and the degree to which those chords are in harmony with broader public opinion.  It is not a time for spelling out proposed legislation in detail. Consistent with that approach, he made frequent, and for the most part, very effective use of his invited guests in order to illustrate broader themes and related issues, ranging from parents of victims of the MS-13 gang, a victim fleeing North Korean persecution, military veterans, an Immigration and Customs Enforcement agent, first responders to hurricanes and wildfires, and business owners and employees benefiting from Trump’s tax legislation. Indeed, the story of Ji Seong-ho, the defector who lost limbs while struggling to survive under the North Korean regime, and who responded to Trump’s shout out by raising his crutches as a symbol of what he endured, was perhaps the most emotional tribute during the entire night.

Collectively, these guests, and the issues they symbolized, provide a window into Trump’s world view – one he sought to articulate in his speech last night. As I tweeted at the speech’s conclusion, Trump’s message was neither as fearful or gloomy as David Brooks and other critics asserted, nor as uplifting as Trump’s supporters proclaimed. Instead, Trump sought to  remind his listeners that America serves as a beacon of hope in a sometimes very dark world; he appealed to “the better angels of our nature” while warning us that the devil lurks at America’s borders.   Unity, he suggested, and with it security and prosperity, can only come by recognizing the reality that much of the world seeks to injure us, or to take advantage of our ideals.  He praised the American experiment in self-government, but also warned that it cannot succeed if we do not correctly identify its enemies, and act accordingly.  As he put it near the end of his speech:

“It was that same yearning for freedom that nearly 250 years ago gave birth to a special place called America. It was a small cluster of colonies caught between a great ocean and a vast wilderness. But it was home to an incredible people with a revolutionary idea: that they could rule themselves. That they could chart their own destiny. And that, together, they could light up the world.

That is what our country has always been about. That is what Americans have always stood for, always strived for, and always done. Atop the dome of this Capitol stands the Statue of Freedom. She stands tall and dignified among the monuments to our ancestors who fought and lived and died to protect her.

Monuments to Washington and Jefferson – to Lincoln and King.

Memorials to the heroes of Yorktown and Saratoga – to young Americans who shed their blood on the shores of Normandy, and the fields beyond. And others, who went down in the waters of the Pacific and the skies over Asia.”

For Trump, America endures because Americans have been willing to pay an often steep price to insure its survival.  It is no surprise, then, that his guests were individuals who succeeded, or at least soldiered on, despite enduring great hardship – even personal tragedy. To his critics, of course, Trump’s vision is that of a bygone era; he seeks a return to a largely white America dating to the 1950’s, or before – one that has little place for people of color or immigrants from “sh*thole” countries.  For his supporters, however, Trump’s America is one that transcends divisions based on race, ethnicity or other elements of identity politics – it is a place that focuses on the ideals we have always shared, rather than on what sets us apart. I suspect last night’s speech, while generally effectively delivered, did little to change those competing perspectives.

Trump also sought to take credit for the positive aspects of the state of the economy, highlighting low unemployment, a growth in manufacturing jobs, workplace bonuses, and a booming stock market, and linking those results to his deregulation efforts and tax reform legislation. As Trump put it, “In our drive to make Washington accountable, we have eliminated more regulations in our first year than any administration in history. We have ended the war on American Energy – and we have ended the war on clean coal. We are now an exporter of energy to the world. In Detroit, I halted Government mandates that crippled America’s autoworkers – so we can get the Motor City revving its engines once again.” (Interestingly, in his State of the Union rebuttal, Bernie Sanders sought to address those claims head on by returning to his familiar diatribe against uneven economic growth that benefits the 1%.)

The centerpiece of Trump’s speech, however, was his four-point immigration plan.  On paper, it has something to appeal to both Democrats, with the path to citizenship for anyone qualifying for “Dreamer” status, and to Republicans, with the call for strong border security and a slowing in immigration levels and a movement toward skills-based entrance standards. However, early indications are that it is meeting the same headwinds emanating from the extremes of both congressional caucuses that doomed previous immigration legislation.  If Trump can get major immigration legislation through Congress without enduring another government shutdown, it will be huge accomplishment, transcending even the tax bill in terms of significance.  But that is a big “if”, and as I told WCAX’s Darren Perron earlier this month, I’m not optimistic.

History suggests that State of the Union speeches are perhaps most effective at raising the salience of issues, rather than helping forge congressional coalitions that lead to legislative successes.  Still, if last night’s speech serves to focus public attention on the details of Trump’s immigration proposal, it might serve as a rallying point for moderates such as Susan Collins (R-ME) and Joe Manchin (D-WV) to find some common legislative ground.  Whether that will be enough to overcome partisan resistance from the wings of both congressional caucuses remains to be seen.  As Trump acknowledged in the traditional pre-SOTU meeting with correspondents, Republicans likely can’t pass immigration legislation on their own – they are going to require Democrats’ support. To get it will likely require further concessions by raising domestic spending caps.  Of course, one speech does not a bipartisan coalition create.  To get immigration through a deeply polarized Congress will require a lot more legislative wizardry than Trump has demonstrated to date.  Still, his speech last night didn’t hurt the effort, and it probably helped – at least a little. But there’s a long way to go, and not much time in which to get there. Stay tuned.  I’ll be on local television (WCAX) this evening to discuss Trump’s speech.  In the meantime, let’s all remember what truly unites us (h/t to Andy Rudalevige!)


Can You Have Your Cake and Free Speech Too? The Supreme Court and the Masterpiece Cakeshop Case

Martin Naunov, Middlebury Class of ’17 and currently a Litigation Fellow in the Office of General Counsel at the Hearst Corporation, waited in line for several days three weeks ago in order to hear oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case.   The case centers on whether compelling a cakeshop owner to bake a cake for a same-sex wedding violates the shop owner’s free speech rights.  Martin’s interest in the case derives in part from his senior honors thesis at Middlebury, which used the Masterpiece Cakeshop and Elane Photography v. Willock cases to explore the conflict between the interest in ensuring equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech. Here’s Martin’s (slightly edited) report from his experiences listening to the oral arguments:

“In 2012, Charlie Craig and David Mullins visited Masterpiece, a bakery in Colorado, and requested a cake for their same-sex wedding. The owner of Masterpiece, Jack Phillips, declined their request, telling the couple that Masterpiece does not make cakes for same-sex weddings.

If Masterpiece were a bakery in a state like Texas, such rejection would have had no legal repercussions. Even though every state has a public accommodation law that prohibits discrimination on the basis of sex, race, and national origin, only 22 states extend this protection to sexual orientation discrimination. Colorado is one of these 22 states. As such, the same-sex couple sued and won.

Mr. Phillips, however, argues that the requirement to provide wedding cakes regardless of the couple’s sexual orientation, violates his rights to freedom of speech and free exercise of religion protected by the First Amendment. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is now before the U.S. Supreme Court. The significance of this case is evidenced by the attention it has gotten; more than a hundred amicus briefs have been filed and more than two dozen people, myself included, began camping outside the Court on Friday for a seat for the Tuesday’s oral arguments. Sometime around June this year, the Supreme Court is expected to answer the following question: Does the First Amendment shield a baker—or wedding vendors in general—from civil rights laws?

Relying on the compelled speech doctrine—which fundamentally means that the right to free speech embraces not just the right to speak but also the right not to—Jack Phillips argues that a requirement to create a cake for a same-sex ceremony compels him to convey endorsement of same-sex marriage, something at odds with his religious beliefs. He claims that, as an artist, he communicates through his cakes.

But if a baker is an artist that speaks through his commercial cakes, then who else can claim exemption from civil rights laws? This is the question that the Court’s liberal justices zeroed in on.

What about the jeweler who designs the rings? What about the hair stylist? The makeup artist? Justice Kagan asked during Tuesday’s oral arguments. “No,” responded Kristen Waggoner, who argued for the baker.  “[But] it’s called an artist. It’s the makeup artist.” Justice Kagan retorted, eliciting a round of laughter from the audience. More hypotheticals followed. According to Ms. Waggoner, tailors, chefs, and architects are generally not engaged in speech, and would therefore not be able to claim exemption from public accommodation laws. “Whoa!” Justice Kagan interjected. “The baker is engaged in speech, but the chef is not engaged in speech?”

“The reason we’re asking these questions,” Justice Breyer explained, “is because obviously we want some kind of distinction that will not undermine every civil-rights law, from the year two.”

The conservative justices, including the swing justice, Justice Kennedy, openly wondered whether Colorado’s anti-discriminatory law is tainted by religious animus.  “Tolerance,” Justice Kennedy lectured the state’s attorney, “is essential in a free society. And tolerance is most meaningful when it’s mutual.”

This comment made clear that Justice Kennedy sympathized with Mr. Phillips and encouraged speculation that he will side with the baker.

However sympathetic towards Mr. Phillips Justice Kennedy might be, the Justice also seems to be cognizant that a decision in the baker’s favor could set a perilous precedent with the potential to erode LGBT rights and undermine civil rights laws across the nation. During oral arguments, he expressed his concern that if the baker were to prevail, businesses would be able to put signs on their windows saying “we do not bake cakes for gay weddings.” Wouldn’t that be “an affront to the gay community?” he asked the government’s attorney rhetorically.

It is impossible to predict with anything even close to certainty how the swing Justice will vote. What is clearer, however, is that mustering Justice Kennedy’s vote in favor of the baker is likely contingent on the Court’s ability to come up with a clear limiting principle—some kind of ingenious “distinction” between Mr. Phillips and the many other businesses who would like to deny service to gay couples or other historically oppressed communities. A distinction that answers Justice Kagan’s question: how come the baker speaks but the chef doesn’t?

Now, many might wonder: What’s speech got to do with this? In other words, how did a case that clearly belongs in the docket of religious liberty find its way in free speech jurisprudence? The answer to this question has to do with the nature and the Court’s reading of both the Free Exercise Clause and the Free Speech Clause.

First, there are countless religious denominations and unique religious practices that could come in conflict with government regulations. (For example, one of my personal favorites is a 1985 case where the defendant claimed that dressing up like chicken in Court is part of his religious belief). As Justice Scalia wrote in Smith, the case that controls Free Exercise jurisprudence, “[t]o make an individual’s obligation to obey a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ [is to] permit him, by virtue of his beliefs, ‘to become a law unto himself.’” As such, the Court pronounced the following rule for determining whether a given law contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Since public accommodation laws have always been judged neutral and generally applicable, religious vendors stand little chance of obtaining exemptions under current Free Exercise doctrine.

Equally (if not more) interesting, however, is how we have arrived at the point where it is even conceivable that a requirement that businesses provide services on an equal basis raises a free speech issue.

The Court’s liberal justices repeatedly brought up the Supreme Court cases where entities like restaurants and universities claimed, without success, exemptions from rules that prohibited discrimination against black people and interracial couples. The truth is, however, that these plaintiffs made a Free Exercise argument, not a Free Speech one. Yes, allowing African Americans and whites to sit and eat together in your restaurant, especially in the South and during a time when this rarely happened, communicated at least some level of acceptance, if not endorsement, of racial integration. Yes, a requirement to serve African Americans compelled waiters to speak to and take orders from them. But no one even entertained the idea that just because the regulation indirectly necessitated some speech and expression, it raises a First Amendment Free Speech issue.

However, things have changed significantly since then and the Free Speech Clause has expanded into areas long deemed utterly unrelated to free speech. Today the typical First Amendment litigant is not a distributer of anti-draft pamphlets or a flag-burner but a commercial entity challenging a law that has very little to do with “freedom of speech” but a lot to do with business regulations. For example, in recent years, courts have upheld numerous First Amendment claims by companies against compelled commercial speech. The D.C. Circuit, for instance, found unconstitutional the FDA requirement that tobacco companies place graphic warning labels on cigarette packages. On First Amendment grounds, the Second District granted preliminary injunction against a Vermont law requiring labeling of dairy products derived from cows treated with genetically engineered growth hormone. According to a major pornography production company, the First Amendment shielded the company from laws that required their employees, porn actors, to wear condoms.

The major factor that has permitted this First Amendment expansionism is the common conflation between the everyday meaning of speech and “speech” within the meaning of “freedom of speech,” i.e. “speech” within the ambit of the First Amendment.

Namely, there are plenty of forms of speech that do not implicate “freedom of speech”: insider trading, illegal contracts, threats, blackmail, subpoena to testify, and so on. These forms of speech are not only not protected by the First Amendment; they are not covered by it in the first place. Discussing similar examples, Professor Schauer explains that “[i]t is not that regulation of such acts meets the heightened burden of justification implicit in the Free Speech Principle. Rather, such acts are not within the scope of the principle at all.”[1] In other words, it is simply not the case that every time a law restricts speech—or compels speech—it curtails “freedom of speech.”

As such, the answer to “Is this business speaking, be that literally or symbolically?” does not—or should not—decide the First Amendment issue. In the words of Justice Kennedy: “The problem for [the baker’s argument] is that so many examples [of other vendors also]…do involve speech. It means that there’s basically an ability to boycott gay marriages.” What courts should care about is whether compelling the business to do something—be that baking a cake or taking wedding photos, which could definitely entail speech—raises a free speech issue. As Professor Schauer explains, “[Speech] must be defined by the purpose of a deep theory of freedom of speech, and not by anything the word ‘speech’ might mean in ordinary talk.”[2]

This, too, however, is easier said than done.

[1] Fredrick Schauer, Free Speech: A Philosophical Enquiry 92 (1982)

[2] Fredrick Schauer, Free Speech: A Philosophical Enquiry 91-92 (1982)”