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.

NARROW

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.

BUT STILL POTENTIALLY SIGNIFICANT

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.