In their separate concurrences in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Justices Kagan and Gorsuch debated one of the key legal questions left unanswered by the Court. The question turns on the proper meaning of the phrase “neutral and generally applicable” under current free exercise doctrine, and the answer could have a profound impact on civil rights laws beyond the context of same-sex marriage. 

The specific issue is whether, when applying a civil rights law that requires businesses to provide equal services regardless of a customer’s sexual orientation or religion, a state can validly distinguish between the following two situations involving refusals of service:

Scenario 1: A bakery that routinely makes wedding cakes for opposite-sex couples refuses to make a wedding cake for a same-sex couple.

Scenario 2: A bakery that does not routinely make cakes with messages condemning weddings or groups of people refuses to make a cake for a conservative Christian customer that depicts a same-sex couple covered by a red “X” alongside the words “God hates sin” and “Homosexuality is a detestable sin.”

Justice Kagan concludes that the two scenarios are easily distinguishable. Scenario 1 involves unequal treatment on the basis of sexual orientation—the gay couple is denied a service provided to straight couples. Scenario 2, by contrast, involves equal treatment regardless of religion—the conservative Christian requesting a cake condemning same-sex couples is treated the same as any other customer requesting such a condemnatory cake would be treated. As for the underlying equal-service obligation in the civil rights law, it is religiously neutral and generally applicable for free exercise purposes because it applies regardless of whether a business owner’s motivation for discriminating is religious or secular. In Scenario 1, the baker would be violating the law whether his refusal was religiously motivated or not. In Scenario 2, the baker would not be violating the law whether his refusal was religiously motivated or not.

To conclude otherwise, and to hold that states cannot distinguish between Scenario 1 and Scenario 2 without violating the Free Exercise Clause, would have far-reaching consequences for civil rights laws. Such laws have never been understood as requiring businesses to adorn products with messages condemning interracial or interfaith marriages, decrying racial or religious integration in general, denouncing Islam or Judaism as false religions, or opposing the practice of women working outside the home. But civil rights laws are most certainly understood as requiring businesses to provide equal services for interracial weddings, interfaith weddings, racially and religiously integrated groups of customers, customers wearing hijabs and kippahs, and women who work outside the home. And unless gay people are to be treated differently than every other class previously protected by civil rights laws, the distinction between Scenarios 1 and 2 above naturally follows.

Nonetheless, Justice Gorsuch disagrees with Justice Kagan, insisting that Scenarios 1 and 2 cannot be distinguished and “share all legally salient features” for purposes of the Free Exercise Clause. Gorsuch’s argument builds on one offered by Professors Tom Berg and Doug Laycock in their Masterpiece amicus brief, which was debated thoroughly at Take Care last fall (see posts here, here, and here), and which Berg and Laycock revisited last week in a post that endorsed Gorsuch’s analysis over Kagan’s. 

At the heart of Gorsuch’s argument lie two key claims: 

Claim 1: Justice Kagan has engaged in inappropriate “after-the-fact maneuvering” with respect to the appropriate “level of generality” because she describes the relevant service in Scenario 1 as the making of “wedding cakes” instead of describing it as the making of “cakes that convey a message regarding same-sex marriage.” 

Claim 2: Condemnation of same-sex marriage is “usually” associated with people of particular religious faiths, just as same-sex marriage is “usually” associated with gay people. Thus, the refusal to make the condemnatory cake in Scenario 2 no less discriminates on the basis of religion than the refusal to make the wedding cake in Scenario 1 discriminates on the basis of sexual orientation.

With respect to Claim 1, Professors Berg and Laycock agree with Justice Gorsuch that Justice Kagan is “manipulating the level of generality” by “treat[ing] the ‘anti-gay’ cake as having a distinctive message, but the cake for the same-sex wedding as merely generic.” And, like Gorsuch, they argue that “if the anti-gay cake is a unique product because of its message, then the [relevant] category is not cakes, or wedding cakes, but cakes with a particular message.” 

This argument fails for at least two reasons. First, it confuses a customer’s end-use of a product with a business’s own placement of an explicit message on the product itself. A cake with the generic message “Congratulations on Your Graduation” does not inherently take on a more particularized message because it is used to celebrate a graduation from Brigham Young University. But a cake adorned with the words “Mormonism is a Cult” and a red “X” over the BYU logo inherently sends a very particular message. Insisting that both cakes be treated at the “same level of generality” would be much more “manipulative” than treating the former as a generic “graduation cake” and the latter as a “cake conveying a particular message.” Second, even if the cakes in Scenarios 1 and 2 must both be treated as cakes sending a particular message, with one celebratory and the other condemnatory, distinguishing between the scenarios is still entirely appropriate. In Scenario 1, the bakery makes celebratory wedding cakes for straight couples while refusing to make them for gay couples, thus falling short of its legal obligation to provide equal service regardless of sexual orientation. In Scenario 2, by contrast, unless the bakery makes condemnatory cakes about weddings for other customers, it is not falling short of its obligation to provide equal service when it declines to make such a cake for a Christian customer.

That leaves Justice Gorsuch’s second claim, which ironically rests on a conflation of two very different degrees of relation and his own manipulation of the appropriate level of generality. Gorsuch begins the relevant discussion by acknowledging that the Colorado Civil Rights Commission treated same-sex marriage as “inextricably tied” to sexual orientation. But then, in an effort to analogize condemnatory cakes to wedding cakes, Gorsuch shifts to the word “usually,” downplaying the unique significance of same-sex marriage to gay people, and implying there may be a non-trivial number of straight people entering into same-sex marriage. Gorsuch provides no evidence for such a phenomenon, and the only evidence Masterpiece offered was a single incident involving a radio show stunt in New Zealand (an example Gorsuch understandably declines to rely upon). Further, instead of using all opposition to same-sex marriage as the appropriate frame of reference, Gorsuch’s attempted analogy stacks the deck by referring only to religious opposition. By making these two moves—switching from “inextricably tied” to “usually,” and narrowing the level of generality for condemnatory cakes—Gorsuch is able to frame the issue as follows: 

[J]ust as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths. 

To further illustrate the subtle manipulations in this framing, and the flaw in Gorsuch’s attempted analogy, it is helpful to call upon a different example. It’s one inspired by a passage later in Gorsuch’s own opinion, in which he emphasizes the religious significance of kippahs, also known as yarmulkes. Mirroring Gorsuch’s framing of same-sex weddings in Masterpiece, here’s how one could downplay the unique significance to Jews of kippahs:  

Just as kippahs are (usually) worn by Jewish customers, so too are hats expressing religious opposition to Jews (usually) worn by persons of particular religious faiths.

Thus, following Justice Gorsuch’s reasoning in Masterpiece, a state could not validly distinguish between the following situations when applying a civil rights law that prohibits religious discrimination:

Scenario 3: A business owner refuses to serve customers wearing kippahs while providing service to other customers wearing hats and head coverings.

Scenario 4: A business owner refuses service to a customer wearing a hat with the message “God hates Christ-killing Jews” and the business owner would also refuse service to a customer wearing a hat with a non-religiously motivated anti-Semitic message or any other message condemning a religious group of people.

Although most state courts would undoubtedly conclude that Scenario 3 constitutes unlawful religious discrimination and Scenario 4 does not, under Justice Gorsuch’s logic the two scenarios must be treated the same.

Here’s where Gorsuch’s analysis goes awry: The Supreme Court has taught that kippahs are inextricably tied to Jewish people, explaining that a “tax on wearing yarmulkes is a tax on Jews.” This is no less true just because there are examples of non-Jews wearing kippahs, whether at Jewish ceremonies or in demonstrations of solidarity. The Court has also taught that same-sex relations are inextricably tied to gay and lesbian people, and has thus “declined to distinguish between status and conduct” in that context. As in the case of kippahs and Jews, the inherent connection between same-sex marriage and sexual-orientation is no less true just because there may be isolated incidents of straight people entering same-sex marriages. 

By contrast, discrimination against Jews and gays is not inextricably tied to any particular creed. As a statistical matter, such discrimination in America may usually have been carried out by Christians, but substantial amounts of such discrimination have been carried out by members of other religious groups (e.g., Muslims against Jews; Jews and Muslims against gays) as well as by non-religiously motivated people. The same is true of race discrimination and sex discrimination. Put simply, while religious arguments have historically been made in support of discrimination on all four bases (race, sex, religion, and sexual orientation), those arguments have come from multiple religions, and each type of discrimination has also been widely perpetuated for non-religious reasons. That is why no court has ever reached the unfathomable conclusion that statutorily prohibiting discrimination in the marketplace amounts to unconstitutional discrimination against religion. But that is precisely where Justice Gorsuch’s argument inevitably leads.

It is also where the Berg-Laycock argument inevitably leads, as evidenced by Professor Berg’s response to a concern I raised in a previous post. I observed there that the Berg-Laycock approach would mean a state must allow a bakery to turn away a Muslim couple seeking a wedding cake so long as the state allows bakeries to refuse to make cakes explicitly condemning Islam as a false religion. Berg acknowledges this is true, but downplays it on two related grounds: First, he assumes that anti-Muslim bakers are more likely to refuse all service to Muslims than to refuse to make wedding cakes for Muslim weddings. Second, if a business does refuse all services, Berg and Laycock argue that a state could overcome their “protect both sides” requirement because it would have a “compelling interest” in “ensuring that people in protected classes have access to the marketplace.” 

The first assumption is in tension with everything that has been written by supporters of the baker in Masterpiece—including Berg and Laycock themselves—about how “the wedding context … intensifies the religious nature” of a business owner’s objection to providing services and how, because weddings are “profoundly symbolic ceremonies,” making wedding cakes is an “inherently communicative” activity that sends more of a message than providing other goods and services. If those assertions are correct, surely it is not hard to imagine that a baker who agrees with Reverends Franklin Graham, Robert Jeffress, and Pat Robertson that Islam is a false religion might have a greater objection to making a wedding cake for a Muslim wedding than he would to providing other services to Muslim customers. And all it would take under the Berg-Laycock approach for such a baker to avoid a state’s requirement that he provide equal service for Muslim weddings would be to “send testers to smoke out” the state’s failure to “protect both sides” by requiring bakers to make anti-Muslim cakes. Under the Berg-Laycock approach, that would qualify as “uneven enforcement of anti-discrimination law” (or a “double standard” to use Gorsuch’s preferred terminology) that would violate the Free Exercise Clause. Fortunately, the Court’s opinion in Masterpiece implicitly rejects the contention that civil rights laws can be so easily be avoided in the wedding context. After indicating that a narrow exception from the laws would be warranted for “a member of the clergy who objects to gay marriage on moral and religious grounds,” the Court emphasizes that “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 that ensure equal access to goods, services, and public accommodations.” (emphasis added). If all it takes to avoid the requirement of providing gay people and Muslims with equal “goods and services for marriages and weddings” is sending out testers to find a baker who declines to adorn cakes with explicit anti-gay or anti-Muslim messages, the protection the Court assumes in the passage above will prove illusory and the stigma the Court warns against will become a reality.     

As for Berg and Laycock’s second argument—that their “protect both sides” requirement can be limited to protecting a business’s refusal of wedding services and not a business’s refusal of all its services because the latter refusal implicates to a greater degree the state interest in guaranteeing market access—it is an uncomfortable fit with Professor Laycock’s observation elsewhere that “we rarely see these cases outside of the wedding context” because “[v]ery few Christians teach that they should never do anything for those who have led sinful lives.” (Sidenote: A similar dynamic played out in the race context, with religious opposition to interracial marriage outlasting religious opposition to integration in other respects, as prominently demonstrated by the policies Bob Jones University maintained in the 1980s and 1990s.) If Laycock’s assertion is correct, far fewer business owners would be expected to engage in religiously motivated refusals of all their services than would be expected to engage in religiously motivated refusals of wedding services. Given that, it is not at all obvious that a state’s interest in ensuring marketplace access would be more “compelling” when dealing with the rare refusals in the former context than with the more common refusals in the latter context. (At a minimum, it would present difficult questions for courts, such as: Is market access more jeopardized by 2 of 3 bakers in one town denying wedding-related services to gay couples, or by 1 of 10 bakers in a larger town denying all of its services?) More fundamentally, there would appear to be a threshold problem with the Berg-Laycock argument about market access: When it comes to wedding-related refusals, of which Masterpiece is an example, Berg and Laycock argue that “because numerous other bakeries were easily available in Denver,” “the only harm [in Masterpiece] was dignitary,” and thus the state had no compelling interest in requiring service to ensure marketplace access. But by this same reasoning, the state would have no compelling interest in requiring service by a Denver bakery that prefers to refuse all its products and services to gay people, as there are “numerous other bakeries … easily available in Denver.” 

Of course, the Court has long treated the compelling interest served by civil rights laws as the dignitary guarantee of equal access to the marketplace, not just the utilitarian guarantee of some access to the types of goods and services a customer may need. See Heart of Atlanta Motel, Inc. v. United States (1964) (observing that the “fundamental object of Title II was to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”). Yet, in the debate over Masterpiece, considerable efforts were made to contest the importance of preventing dignitary harms in the marketplace. Professors Berg and Laycock, for example, argued that “the offense the customer feels at being turned away … is not a sufficient interest” to overcome a business owner’s expression-based or religious objection to providing equal wedding services. The Court in Masterpiece, however, adhered to its traditional approach, making clear that the protection of dignitary interests would apply no less to gay people than people previously covered by civil rights laws:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth…. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts…. [W]hile … religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law…. [I]f [the clergy] 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 that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. (emphasis added).

This is strong language indeed reaffirming the dignitary value of being afforded equal access in the public marketplace. But state civil rights laws will only be able to fulfill the promise of that language if the Court rejects the Gorsuch-Laycock-Berg “both sides” argument—an argument that would not allow states to guarantee members of protected classes equal access to the marketplace unless those states also require businesses to adorn products with messages condemning members of protected classes.  

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