For a good reminder of why we have civil rights laws, consider the following statements:

• “I think Islam hates us … and we can’t allow people coming into this country who have this hatred of the United States”
• “Muslim Ellison should not sit in Congress”
• “Islam … isn’t a, quote, religion, as such; it’s a political system masquerading as a religion”
• “It is a false religion”
• “Islam is a false religion, and it is inspired by Satan himself” 

In light of these sentiments – expressed by a successful presidential candidate, a former state supreme court justice who is now a major party nominee for the U.S. Senate, two prominent evangelical leaders, and a mega-church pastor described by the sitting President as a “wonderful man” – it is not at all difficult to imagine the following scenario:

A bakery refuses to make a wedding cake for a customer wearing a hijab. The bakery is then charged with violating a state civil rights law, which prohibits businesses open to the public from discriminating against customers on the basis of religion. The owner of the bakery defends his actions on the ground that he sincerely believes Islam is a false religion inspired by Satan and it would be a sin to facilitate a Muslim wedding.

Under the Supreme Court’s decision in Employment Division v. Smith, this would appear to be an open-and-shut case. There is no constitutional right to be exempted from generally applicable laws, and thus the baker must comply with the civil rights law and provide equal service to the Muslim customer.

Not so, however, according to the novel interpretation of Smith proposed by Professors Tom Berg and Doug Laycock in their Masterpiece Cakeshop brief – a brief I critiqued in an earlier post, prompting a spirited response. Under the logic of the Berg/Laycock approach, unless the state civil rights law requires bakers to make cakes condemning Islam as a false religion, it does not qualify as generally applicable, and thus its requirement that bakers provide equal service to Muslim customers must be subjected to the strictest of scrutiny.

Likewise, the prohibition of race discrimination in Title II of the 1964 Civil Rights Act would not qualify as generally applicable under the Berg/Laycock approach. The reason is the same: While the law requires restaurants to serve black customers, regardless of an owners’ religious opposition to integration, it does not require restaurants to serve customers wearing hats saying “integration is a sin” or “God hates blacks.” Thus, while the Supreme Court derided Maurice Bessinger’s free exercise claim in Newman v. Piggie Park Enterprises as “patently frivolous,” under the Berg/Laycock approach, Bessinger would have a presumptive right to be exempt from the equal-service obligations of Title II.

The same would go for a bank that refuses to open individual accounts and issue checks to married women in their name alone, while doing so for men, based on the religious belief that men are the head of married households and must maintain control over all marital resources. Under the Berg/Laycock approach, because civil rights laws prohibiting sex discrimination do not require a bank to open an account and issue checks in the name of a “Wives Must Obey Their Husbands” advocacy organization, it is not generally applicable and the bank discriminating against women would have a presumptive right to an exemption. 

These are the inevitable consequences of Berg and Laycock’s argument that laws requiring businesses to provide equal service to gay customers are not generally applicable unless they also require businesses to adorn products with messages “condemning same-sex relationships.” According to Berg and Laycock, failing to require businesses to produce such messages makes civil rights laws constitutionally vulnerable because the state is “discriminating between squarely opposite sides on a deeply divisive moral issue” and taking sides in a “culture war.”

Of course, the argument about taking sides in a culture war could just as easily have been made – and was made – in the 1960s about the Civil Rights Act. Nonetheless, in the half century since, no court has ever found a civil rights law to be vulnerable on the ground that it does not treat business owners’ refusals to abide derogatory speech about members of a protected class as analogous to business owners’ refusals to provide equal service to members of a protected class. Yet, that is precisely the argument Berg and Laycock are advancing. See Berg/Laycock Br. at 4 (contending that “refusing to provide a cake denouncing same-sex marriage” is “analogous” to “the regulated conduct” of refusing to provide a wedding cake for a same-sex couple).

Berg and Laycock claim that in my initial post about their brief, I said “little, relatively speaking, about the unequal treatment of the two sets of bakers” – those who refuse equal service to same-sex couples, and those who refuse to make cakes denouncing same-sex couples. This is puzzling, given that I wrote at length on precisely this point:

[T]he allegedly analogous secular exemption Berg and Laycock claim exists in Colorado’s civil rights law reveals just how far they would have courts stretch the concept [of non-general-applicability].

According to Berg and Laycock, the analogous existing “exemption” in Colorado’s civil rights law is actually an omission: while the law requires businesses to provide equal services to same-sex and opposite-sex couples (and, for that matter, interracial and intra-racial couples, and interfaith and intra-faith couples), it does not require businesses to honor a customer’s request to adorn goods with messages “denouncing” same-sex marriage (or interracial or interfaith marriage). Berg and Laycock insist that this so-called “exemption” for businesses that refuse to sell goods with such denunciations “endangers the state’s interests” in its civil rights law “as much as” allowing businesses to deny equal services to same-sex couples. Berg/Laycock Masterpiece Br. at 4.

How do Berg and Laycock arrive at this astonishing conclusion? They argue that just as same-sex marriage is inextricably linked to gays and lesbians, opposition to same-sex marriage is inextricably linked to Christians, and “[u]nwillingness to promote a protected group’s message either is discrimination or it is not.” Id. But this argument fundamentally misunderstands the state’s actual interest in its civil rights law, while wrongly implying that opposition to same-sex marriage is limited to Christians (or even religious people).

Colorado’s interest in its civil rights law is not the equal promotion of “gay” messages, “black” messages, or “Christian” messages – a goal that would be impossible to achieve since no one person or collection of people can purport to speak for all people who happen to be gay, black, or Christian. Rather, the state’s interest is in ensuring equal access to services in the commercial marketplace regardless of one’s sexual-orientation, race, or religion. Denying same-sex couples services that are provided to opposite-sex couples undermines that state interest in equal treatment, and the same would be true of denying to interracial couples services that are provided to intra-racial couples and denying to interfaith couples services that are provided to intra-faith couples. By contrast, denying a Christian customer a service that would not be provided to customers of another religion or of no religion (e.g., writing statements denouncing other people and/or their marriages) does not undermine the state interest in equal treatment regardless of religion.

See also Brief of Church-State Scholars in Masterpiece Cakeshop at 14 (citing this analysis and agreeing that “denying a Christian customer a service that would not be provided to customers of another religion—or of none—does not undermine the State’s interest in equal treatment”).

Berg and Laycock object that this basic explanation of what does and does not qualify as unequal treatment under civil rights laws “is just a way of relabeling the clear viewpoint distinction between the two sets of messages” and they insist that “the state may not distinguish between ‘derogatory’ and non-derogatory messages.” In other words, while Berg and Laycock claim to be making a free exercise argument, they are ultimately relying on a radical free speech argument: civil rights laws amount to unconstitutional viewpoint discrimination because they prohibit commercial businesses from discriminating against members of protected classes, but don’t prohibit businesses from discriminating against customers who denounce members of protected classes. This novel theory would undermine the settled understanding that applying civil rights laws to commercial businesses does not violate the Free Speech Clause – an understanding Chief Justice Roberts reaffirmed in his unanimous opinion for the Court in Rumsfeld v. FAIR: “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”

How did Berg and Laycock get to this dangerous place? By trying to shoehorn the Masterpiece Cakeshop case into their already dubious reading of the Court’s selective-exemption rule, even though Colorado’s public accommodations law does not contain any actual secular exemptions. So Berg and Laycock are left to invent an “exemption,” which requires them to make their disturbing argument equating protection of gay couples in the commercial marketplace with denunciations of gay couples in the marketplace.

As for the underlying merits of Berg and Laycock’s interpretation of the Court’s current free exercise doctrine, I will largely rest on what I have written extensively elsewhere. But a few points are in order here.

First, as I noted in my initial post, the Smith Court specifically cited laws “providing for equality of opportunity for the races” as examples of generally applicable laws to which strict scrutiny should not apply. Yet, the Berg/Laycock approach would apply such scrutiny to the nation’s most famous equal opportunity law. Title VII of the 1964 Civil Rights Act exempts businesses with fewer than 15 employees from its coverage, thus directly implicating Berg and Laycock's proposed rule that if "an anti-discrimination law exempts very small businesses, then the Constitution prima facie requires exemptions for religious conscience, subject to the compelling interest test.” Berg/Laycock Amicus Br. in Hollingsworth v. Perry. In their response to my post, Berg and Laycock wholly fail to address this point. That’s not “reading Smith carefully.” Rather, it's simply choosing to ignore one of the decision’s most salient messages. See Josh Blackman, Collective Liberty, 67 Hastings L.J. 623, 674 (2016) (observing that Justice Scalia’s opinion for the Court in Smith “specifically worried that parties might seek accommodations for discrimination based on religious belief”).

Second, Berg and Laycock fault me for failing to discuss Sherbert v. Verner, a case they claim that Smith “explicitly reaffirmed.” But far from reaffirming Sherbert, here’s what Smith actually said about the case:

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, … [its] test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct…. [A] distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment: “The statutory conditions [in Sherbert and Thomas] provided that a person was not eligible for unemployment compensation benefits if, 'without good cause,' he had quit work or refused available work. The 'good cause' standard created a mechanism for individualized exemptions."

Since Colorado’s civil rights law does not have a discretionary “good cause” exemption permitting discrimination against protected classes based on individualized assessment of the reasons for the discrimination, the Smith Court’s reading of Sherbert is of no assistance to Masterpiece Cakeshop. More generally, the broad selective-exemption rule championed by Berg and Laycock, under which even narrow categorical exemptions adopted in completely innocuous circumstances can render laws constitutionally suspect, goes far beyond the individualized-exemption situation contemplated in Smith’s discussion of Sherbert. See Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004) (“Smith’s ‘individualized exemption’ exception is limited, then, to systems that are designed to make case-by-case determinations. The exception does not apply to statutes that, although otherwise generally applicable, contain express exceptions for objectively defined categories of persons.”). Finally, Berg and Laycock’s attempt to portray Smith as reaffirming Sherbert is difficult to square with the near-unanimous reading of those cases among commentators and jurists. See Douglas Laycock, Hosanna-Tabor and the Ministerial Exception, 35 Harv. J.L. & Pub. Pol'y 839, 856 (2012) (“The central point of Smith was to sharply limit the right to regulatory exemptions for religiously motivated conduct that had developed under Sherbert v. Verner and Wisconsin v. Yoder.”); Burwell v. Hobby Lobby Stores, Inc. 134 S. Ct. 2751, 2760 (2014) (explaining that Smith “largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner” and “rejected ‘the balancing test set forth in Sherbert.’”).

Third, Berg and Laycock claim that the Supreme Court’s interpretation of Smith in City of Boerne v. Flores is “not relevant” because “RFRA departed from Smith under any interpretation” and “[n]o one briefed the meaning of Smith and Lukumi, or the meaning of RFRA, in Boerne.” This is a curious argument given that Laycock himself briefed the issue in Boerne on behalf of the respondents, specifically contending – just as he and Berg contend in their Masterpiece Brief – that a “law may discriminate against religion without a finding of bad motive even if the law does not mention religion, if, for example, the law provides exemptions for secular hardship and no exemptions for religious exercise. See Sherbert v. Verner, 374 U.S. 398 (1963), as explained in Smith, 494 U.S. at 884.” Brief of Respondent Flores at 10, 1997 WL 10293. Based on this reading of Smith, Laycock’s brief in Boerne maintained that the “constitutional standard may require justification of more cases in the religion context than in the race context,” thus “making RFRA an easier case than Title VII or the Voting Rights Acts.” Id. This, of course, was not how the Court read Smith’s constitutional rule in Boerne. See Thomas C. Berg, Can Religious Liberty Be Protected As Equality?, 85 Tex. L. Rev. 1185, 1197 (2007) (“The Court in Boerne, in finding RFRA disproportionate to Free Exercise Clause violations, compared the statute to a relatively narrow constitutional prohibition against laws reflecting ‘bigotry,’ ‘animus,’ or ‘hostility’ toward the burdened faith.”).  

Fourth, in my initial post, I distinguished the two circuit court cases Berg and Laycock cite on the grounds that:

1. They involved findings of either targeting or discriminatory intent, and
2.  There is a difference between (a) “infer[ring] discriminatory intent when the same, small decision-making body simultaneously approves engaging in particular conduct for secular reasons and disapproves of engaging in the very same conduct for religious reasons,” and (b) arguing that “the government violates the Constitution even when discriminatory intent cannot be inferred (e.g., a case where a legislative body passes a law including some categorical exemptions years before another exemption is sought from executive or judicial officials on religious grounds).”

In response, Berg and Laycock insist that “[n]either opinion says a word about simultaneity.” This is simply incorrect. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1235 (11th Cir. 2004) (“Including private clubs and lodges as permitted uses in Surfside's business district, while simultaneously excluding religious assemblies, violates the principles of neutrality and general applicability …. Surfside’s failure to treat the analogous groups equally indicates that Surfside improperly targeted religious assemblies.”) (emphasis added); cf. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999) (“[W]e conclude that the Department’s decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi.”) (emphasis added). Berg and Laycock also unconvincingly claim, based on a single inartfully drafted sentence in a brief, that the medical exemption considered in Fraternal Order “was much older” than the 1997 police department memo that was challenged for not including a religious exemption. In fact, the medical exemption granted in that same 1997 memo was the only medical exemption cited by the Third Circuit. See id. at 365 & n.6. Moreover, the very cert. petition cited by Berg and Laycock in their response makes clear that the Fraternal Order of Police was still challenging the lack of a medical exemption in 1995 and 1996. See Petition for a Writ of Certiorari at 4, City of Newark v. Fraternal Order of Police, 1999 WL 33640720.

At the end of the day, however, my disagreements with Berg and Laycock over past precedent pale in comparison to my disagreement with the novel argument they are advancing in Masterpiece – an argument that, as noted above, would make every civil rights law in the nation vulnerable to challenge by business owners with religious objections. This would undermine the central guarantee of civil rights laws in the commercial marketplace: equality of treatment that cannot be denied based on “the proprietor’s exercise of personal preference.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 578 (1995). See generally Brief of Public Accommodation Law Scholars in Masterpiece Cakeshop (discussing the historical origins and longstanding application of state laws requiring full and equal treatment in places of public accommodation). 

Disclosure: I participated in drafting the Brief of Public Accommodation Law Scholars in Masterpiece Cakeshop.

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