A version of this article is forthcoming at GW Law Review, On the Docket

Masterpiece Cakeshop was widely billed as the culture war case of the Term.  Jack Phillips, the baker and owner of Masterpiece Cakeshop, refused on grounds of religious conscience to provide any custom made cake for the wedding ceremony of a same sex couple, Charlie Craig and Dave Mullins.  Craig and Mullins filed a complaint under the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination based on (among other grounds) sexual orientation in the provision of goods or services.  The state decision-makers, administrative and judicial, 1) found that Phillips’ refusal to provide any custom made cake for a same sex wedding was a violation of the Act, even if he was willing (as he asserted) to provide a same sex couple with any other goods; and 2) rejected Phillips’ arguments that this application of the Act violated his rights under the First Amendment’s Free Exercise Clause and Free Speech Clause.

At oral argument, the Court seemed deeply divided on partisan lines.  Nevertheless, in an opinion that garnered a surprising seven votes, Justice Kennedy concluded that the Colorado decision makers did not treat Phillips’ religious claims with the respect and “neutrality” that the Free Exercise Clause required.   This defect led to an outright reversal of the decision, rather than (as one might expect) a remand to reconsider the case with the requisite sensitivity to religious concerns. The decision appears to extend free exercise norms in an uncertain, process-oriented, and unpredictable way.

As litigated beginning to end, Masterpiece Cakeshop posed a stark conflict between claims of LGBT equality, protected by statute in about half the states, and claims of religious and expressive liberty. After the grant and before oral argument, the conventional jurisprudential wisdom was that the centerpiece of the case would be the speech claim. In particular, Phillips argued that forced compliance with civil rights law in this context would produce an unconstitutional compulsion of speech in the form of a wedding cake made to celebrate a same sex marriage.  Indeed, the case produced a number of amicus briefs devoted to cake art and its communicative significance.  Because the services of some wedding vendors, such as photographers, involve rather evident interests in communications, the questions of line drawing among forms of art seemed at the heart of the case.

In contrast, most observers believed that the Free Exercise Clause issues would not be crucial to the disposition of the case.  This confidence, which we thought was quite misplaced, derived from the background law of free exercise. The key precedents were Employment Division v. Smith^[1] (1990) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah^[2] (1993).  Smith held quite broadly that the Free Exercise Clause does not support an exemption for religious objectors from religion neutral, generally applicable statutes. Lukumi held that enactments motivated by animus toward a particular faith were not entitled to the Smith umbrella, and were presumptively unconstitutional.  Because CADA applies to all relevant discrimination regardless of what may motivate it, no one in this case questioned the proposition that the Act should be measured by Smith and not Lukumi.

What the conventional wisdom missed was the extreme reluctance of the Justices to confront the conflict between the dignitary rights of same sex couples, and the religious objections of vendors like Phillips.  Other than Justice Thomas,^[3] the Justices all found ways to express their concern for both sides of the conflict, note the difficulty of the substantive questions presented, and then duck them entirely.  Instead, the Court focused on a question that had not been at the center of public attention – whether the Colorado decision makers had been hostile to Phillips’ religious concerns. 

Justice Kennedy, writing for a majority of seven Justices, concluded that the state proceeding had been fatally tarnished by hostility of this sort.  He found evidence for this conclusion in some anti-religious remarks from one Colorado Civil Rights Commissioner,^[4] and (more controversially) in the Commission’s disposition of three cases brought against Colorado bakers by William Jack.

In a deliberate strategy to show bias against traditional Christian views of marriage, William Jack requested three different Colorado bakeries to create cakes bearing explicit anti-gay messages, including the line “Homosexuality is a detestable sin. Leviticus 18:2.”^[5]  All three refused on the grounds that these messages were hateful and disparaging to a class of customers.    The Colorado Civil Rights Commission dismissed the William Jack complaints, finding that they involved no forbidden discrimination. The bakers would have refused any customer’s request to create cakes with these disparaging messages.  In Masterpiece, the Colorado Court of Appeals acknowledged the correctness of those dispositions, and characterized the messages requested by William Jack as “offensive.”^[6]

Desperately seeking a way of avoiding the substantive conflict between religious or expressive freedom and LGBT equality, the Masterpiece majority seized on this remark and asserted that it revealed an impermissible bias on the part of Colorado officials.  If the descriptor “offensive” referred to official government attitudes, as the Court suggested, the term might have reflected impermissible state bias. If the reference served to protect the consciences of bakers who favored same sex marriage while disparaging the consciences of bakers like Jack Phillips who opposed such marriage, as Phillips’ lawyers argued, the Court might have been right.  But neither of those interpretations was sound. As a group of church-state scholars (including ourselves) argued in an amicus brief filed on the side of the Colorado Civil Rights Commission,^[7] the agency properly expressed concern that the requested messages disparaged members of the LGBT community.^[8]  Such a message is inconsistent with the basic policies of the public accommodations law.  Any ambiguity about this reference could easily have been dispelled by an appropriate deference to the judgment of a state court.

The majority’s emphasis in Masterpiece on government animus to Phillips’ religious convictions, and the particular obsession with the William Jack cases, was an artifice that allowed the Court to avoid the substantive merits of the case.  This was made screamingly obvious by the number of pages devoted to the William Jack cases in the concurring opinion of Justice Gorsuch (joined by Justice Alito);^[9] the concurring opinion of Justice Kagan (joined by Justice Breyer);^[10] and the dissenting opinion of Justice Ginsburg (joined by Justice Soyomayor).^[11]

Justice Kagan’s opinion went so far as to fully concede that William Jack had not been subject to discrimination under CADA, because the denial of his requested cakes bearing anti-gay messages would have occurred without regard to his religion. But she fully credited the majority’s treatment of the reference to the “offensive” character of those messages, in the state Court of Appeals opinion, as referring to the attitudes of either the government or the service-refusing bakers. Had she or Justice Breyer bothered to look at the underlying agency opinions,^[12] they would have realized that they were wrong. Why Justice Kagan or Justice Breyer felt pressure to conform to the majority’s mischaracterization in Masterpiece nevertheless remains a mystery.  A 7-2 result (as compared to a 5-4) will not reduce national conflict over these issues, nor will these Justices’ influence be any greater if and when these issues return.

The immediate consequence of the Court’s eagerness to find anti-religious bias or hostility on this record is to terminate the proceedings in this case.  But this is not a frictionless way of avoiding substantive decision about free exercise and free speech objections to compliance with nondiscrimination laws in this context. In Colorado, there will be a question going forward of whether Jack Phillips or other wedding vendors may continue to discriminate against those arranging same sex weddings.  The relevant agency officials can easily avoid expressions of animus toward orthodox religious views of marriage, but there is no way for the state to undo its adjudication of the William Jack cases. Indeed, it would be purely lawless for those officials to suggest that vendors may not refuse service to those who want to put disparaging messages on their products. The anti-discrimination laws do not prohibit such refusals when they are made without regard to the identity of the customer.

Outside of Colorado, agency officials and state court judges will almost certainly face the same dilemma.  Testers like William Jack are likely to appear in every state that forbids discrimination based on sexual orientation in public accommodations.  If vendors refuse the testers’ efforts to purchase goods with anti-gay messages, the discrimination complaints will have to be treated with exquisite care, lest their dismissal give rise to claims of anti-religious bias when the next Masterpiece-type case arises.  

Moreover, within the Supreme Court itself, the Justices must now resolve the pending cert petition in the Arlene’s Flowers case from Washington State,^[13] in which there appears no comparable hostility to religious views. Will the Court grant cert and face the substantive questions it has just avoided? Or will it vacate and remand for reconsideration in light of Masterpiece Cakeshop, even though the Masterpiece opinions will give virtually no guidance whatsoever to the Washington state courts on remand?

More generally, Masterpiece Cakeshop may foment considerable unpredictability in agencies and lower courts about the relative scope of the Smith principle and the correlative Lukumi principle. Prior to Masterpiece, judges quite properly perceived that the Smith rule governed all cases of religion-neutral regulation, and that Lukumi applied only in the case of a strong showing that anti-religious bias produced a result or an enactment that otherwise would not have occurred.  Masterpiece throws that proposition into question, because Jack Phillips unquestionably would have lost in the Colorado Civil Rights Commission and the state courts in the absence of any bias toward his religious views.

For years, scholar/advocates such as Professor Laycock and Professor Berg have tried to move the boundary between the broad, general rule in Smith and the narrow, animus-based exception in Lukumi. The Laycock-Berg brief in Masterpiece Cakeshop was aimed at precisely that end.^[14]  And we have long known that Justice Alito was receptive to such a move.^[15] The Gorsuch opinion in Masterpiece, joined by Alito, wholeheartedly embraces that move.

Respectful treatment of differing religions is of course a constitutional good, but a system that threatens to overturn any administrative decision that appears tainted – even harmlessly – by signs of religious bias is one that will inevitably favor religious interests over other, competing concerns.  And when such a system is especially sensitive to slights against conservative Christians but not others,^[16] it is constitutionally corrupt.

[1] 494 U.S. 872 (1990).

[2] 508 U.S. 520 (1993).

[3] In Masterpiece, only Justice Thomas was willing to fully confront the free speech claims. He would have ruled in Phillips’ favor.  Slip op. concurring opinion by Thomas, J.

[4] One Commissioner expressed the view that religion has been used to justify terrible acts, including slavery and the holocaust.  Slip op. at 13. Although the Commissioner did not explicitly equate those horrors with Phillips’ act of discrimination, the inference was obvious. But nothing in the record suggested that the outcome of the case turned on this remark or the attitude it expressed.

[5] Ginsburg dissent at 3.  William Jack also asked one bakery to create a cake with a same-sex couple covered by a red “X” and the Bible verse “God hates sin. Psalm 45:7”.  Colorado Civil Rights Division, online at https://mediaassets.thedenverchannel.com/document/2015/04/23/Jack_Williams_V_Azucar_Bakery_17228465_ver1.0.pdf?_ga=2.107031554.1405790413.1528281045-1812422258.1528281045

[6] 370 P.3d at 282, note 8, cited in slip op. at 16.

[7] Brief of Church-State Scholars as Amici Curiae in Support of Respondents,  http://www.scotusblog.com/wp-content/uploads/2017/11/16-111_bsac_church-state-scholars.pdf. See especially pp. 12-18.  Joshua Matz, the founder of the Take Care blog, was a principal author of that brief.

[8] Ginsburg, J. dissenting, slip op. at 3.

[9] Gorsuch, J. concurring, slip op. at 2-3.

[10] Kagan, J. concurring, slip op. at 1-3. 

[11] Ginsburg, J. dissenting, slip op. at 2-7.

[12] Jack v. Azucar Bakery, Charge No. P20140069X (Colo. Civil Rights Div. Mar. 24, 2015) (J.A. at 230); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X (Colo. Civil Rights Div. Mar. 24, 2015) (J.A. at 240); Jack v. Gateaux, Ltd., Charge No. P20140071X (Colo. Civil Rights Div. Mar. 24, 2015) (J.A. at 249).

[13] The Court is scheduled to take up Arlene’s Flowers Inc. v. Washington, No. 17-108, in Conference on Thursday, June 7, and may announce a disposition of the petition on Monday, June 11. http://www.scotusblog.com/case-files/cases/arlenes-flowers-inc-v-washington/case

[14] Brief of Christian Legal Society et al. as Amici Curiae in Support of Petitioners, http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_tsac_christian_legal_socy.pdf.  See also Douglas Laycock and Thomas Berg, Masterpiece Cakeshop – not as narrow as may first appear, http://www.scotusblog.com/2018/06/symposium-masterpiece-cakeshop-not-as-narrow-as-may-first-appear/.

[15] See Fraternal Order of Police v. City of Newark, 170 F. 3d 359 (3^rd Cir. 1999 ) (Alito, J.).

[16] As others have noted, the question of religious bias – far more strenuous and potentially outcome determinative -- is also present in the pending Travel Ban case, Hawaii v. Trump.  See Michael Dorf, Masterpiece Cakeshop Ruling Should (but Probably Won’t Doom the Travel Ban, http://www.dorfonlaw.org/2018/06/masterpiece-cakeshop-ruling-should-but.html; Leah Litman, Masterpiece Cakeshop and the Entry Ban, https://takecareblog.com/blog/masterpiece-cakeshop-and-the-entry-ban.

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