//  6/15/18  //  In-Depth Analysis

By Thomas C. Berg and Douglas Laycock

We approach the Masterpiece Cakeshop ruling from the perspective of supporting both same-sex marriage rights and strong religious liberty rights. Obergefell v. Hodges[i] correctly held that same-sex couples should be able to live consistently with their identity by being civilly married. Jack Phillips, the baker in Masterpiece, claimed the right to live consistently with his identity: the right, in pursuing his occupation, not to create cakes for an event that he believes conflicts with the fundamental nature of marriage as ordained by God.

The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious traditionalists and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.

Both groups also claim the right to live their identities in public settings. Same-sex couples, once wrongly told to keep their relationships closeted, now have the right to participate in the institution of civil marriage; they should also have full access to goods and services in the marketplace, including wedding-related goods. But neither should religious believers be told to confine their beliefs to church; they likewise have strong interests in being able to pursue their livelihoods without having to violate their conscience. We can reconcile these two claims by recognizing narrow religious exemptions for small, personalized businesses that conscientiously object to providing goods and services directly to the marriage (primarily through weddings), when other providers are readily available.

What does Masterpiece mean for the project of protecting both sides? For starters, it sets the right tone, reaffirming the right of same-sex couples to dignity and equality and insisting that religious believers who object to same-sex marriage must also be treated with tolerance and respect. But the import of the ruling depends on interpreting the Court’s holding that the Colorado Civil Rights Commission, in adjudicating Phillips’ case, showed unconstitutional “hostility” toward his beliefs.

Hostility and Officials’ Statements

The evidence of hostility consisted first in several statements by commissioners, one of whom connected religion and religious freedom to slavery and the Holocaust and added that “it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The Court found such statements “inappropriate” for an adjudicatory body charged with “fair and neutral enforcement of Colorado’s anti-discrimination law.” Whatever result judges or other adjudicators reach under law, their conclusion can be reversed if there is evidence of bias.

This part of the ruling, like any other that focuses on smoking-gun statements revealing bad intent, can easily be evaded. Decision-makers will now be more careful to conceal their hostile attitudes toward conservative religious beliefs. But those attitudes can still drive decisions, and the attitudes are widespread.

The holding of hostility relies on Church of the Lukumi Babalu Aye v. City of Hialeah,[ii] which held that ordinances targeting Santeria animal sacrifices failed the requirement that they be “neutral” toward religion and “generally applicable.” But in that case, a section of the opinion focusing on legislative statements hostile to Santeria garnered only two votes. Masterpiece now makes that section a majority holding, at least when the statements are made in the course of administrative or judicial adjudication.

It will be interesting to compare Masterpiece to the forthcoming ruling in Trump v. Hawaii, which challenges the facially-neutral travel ban based on, among other things, the president’s poisonous anti-Muslim statements (calling for a “total and complete shutdown of Muslims entering the U.S.” and asserting that “Islam hates us”). When the political polarities are reversed, will Justices switch their vote on inferring unconstitutional motive from hostile statements?

Trump’s anti-Muslim hostility was particularly unambiguous; and with a presidential order only one person’s intent is at issue, which makes his statements even more probative than those of an individual on a multi-member body. We do not know if the Court will so rule. The immigration context adds doctrinal complications; and if the majority believes that it should infer bad motive only from statements by adjudicators, not policymakers, an executive order falls in the latter category. But the Court is willing to infer discriminatory motive from legislative statements in race- and sex-discrimination cases under the Equal Protection Clause; it’s hard to see why religious-discrimination cases should be different.

It is vital in today’s circumstances to condemn official hostility to any religion. In polarized America, too many people show tolerance for conservative Christians but not for Muslims. But that does not justify intolerance the other way; Masterpiece was right to condemn hostility toward Phillips’ traditionalist beliefs.

Rationalizations for Unequal Treatment

Prudent officials can avoid making smoking-gun statements, but the other sort of evidence of anti-religious hostility in Masterpiece will be harder for states to conceal. In another set of cases, three different bakers had refused requests from a conservative Christian to bake cakes with religious symbols and quotations hostile to same-sex conduct. He brought claims of religious discrimination, but the Colorado Commission rejected them; that is, it protected the bakers’ refusals to make the cakes. As the Supreme Court found, the state’s reasoning about these protected bakers was blatantly inconsistent with its reasoning about Phillips, in at least two ways. The Commission said that any message from the same-sex wedding cakes would be the customers’ message, not Phillips’; it did not say that with respect to the protected bakers. The Commission also said that the protected bakers’ willingness to make other cakes with Christian themes for Christian customers was exonerating, but that Phillips’ willingness to make other cakes for same-sex couples was irrelevant.

In an amicus brief filed on behalf of several religious organizations, we offered these and other inconsistencies to show that the Colorado law, as interpreted and enforced, is not “neutral” and “generally applicable” under Lukumi.[iii] If (as interpreted) the law had an exception for the protected bakers, then it must have an exception for bakers with religious objections. Refusing a religious exception while allowing even one or a few analogous secular exceptions shows that the state treats religious needs and commitments as less important, less deserving of exemption, than secular needs or commitments.

The Court in Masterpiece said something slightly different: that the inconsistent treatment of Phillips and the protected bakers showed “hostility” towards Phillips’ religious faith. The state had been neither “neutral [nor] tolerant” toward his beliefs; it had acted on “a negative normative ‘evaluation of the particular justification’ for his objection” (quoting Lukumi).

To say that inconsistent, more favorable treatment of analogous secular claims shows unconstitutional hostility toward religion is potentially a powerful principle. Left-leaning states and cities will be unwilling to force socially liberal vendors to produce goods with conservative religious messages in violation of their conscience; those states cannot then turn around and require religiously conservative vendors to produce goods in violation of their conscience.

But the requirement to treat claims consistently will be powerful only if the courts take it seriously. States will try to manipulate rules to justify their unequal treatment of objectors they agree with and those they don’t. In Masterpiece, four Justices bought such a manipulation. Justice Kagan’s concurrence and Justice Ginsburg’s dissent both argued that the state’s discrimination could have been justified on the ground that the protected bakers would not sell an anti-gay cake to anybody, but Phillips would sell wedding cakes to opposite-sex couples.

As Justice Gorsuch’s concurrence explained, however, this reaches the preordained result by manipulating the level of generality. It treats the “anti-gay” cake as having a distinctive message, but the cake for the same-sex wedding as merely generic. But if the anti-gay cake is a unique product because of its message, then the category is not cakes, or wedding cakes, but cakes with a particular message. And often, a cake for a same-sex wedding will have some indication, even if symbolic, indicating approval of the marriage—two brides, the couple’s names, a rainbow—and that is a cake that Phillips would not sell to anybody. If his conversation about the cake with Craig and Mullins, the gay couple, had continued a little longer, such symbolism in the design likely would have come up. Phillips testified that his regular process involves learning about the customers’ “desires, their personalities, their personal preferences and … their wedding ceremony and celebration” so as to “design the perfect creation for the specific couple.”[iv]

Even without such symbols, the cake still sends a celebratory message. As the Colorado appeals court tellingly put it, the couple asked Phillips to “design and create a cake to celebrate their same-sex wedding.”[v] His job was to make his part of the wedding or reception the best and most memorable it could be, and that celebratory message is inherent in the cake.

A different defense of the state appears in Professors Lupu and Tuttle’s Take Care post[vi] and in a scholars’ amicus brief they joined.[vii] They claim that the commission “properly expressed concern that the requested messages [that the protected bakers refused] disparaged members of the LGBT community. Such a message is inconsistent with the basic policies of the public accommodation law.” But that rationale raises severe free-speech problems. On that view, even if two requested cakes both express an explicit message, the permissibility of refusal depends on whether the viewpoint in the message “disparages” a group identified in the nondiscrimination law.

Suppose two bakers refuse to design cakes, one that would say “Jesus is Lord,” the other that would say “Jesus is Lord and the Pope is the Antichrist,” and both bakers are sued—quite plausibly under Colorado law—for discrimination against a religious belief.[viii] Under Lupu and Tuttle’s position, it seems, only the second cake could be refused, since that cake adds a message “disparaging” Catholics. Such discrimination among viewpoints is forbidden under decisions like R.A.V. v. City of St. Paul[ix] and Matal v. Tam.[x]

The Overall Free Exercise Standard

Finally, Professors Lupu and Tuttle claim that Masterpiece unsettles the overall standard for Free Exercise Clause claims. They read the clause, as interpreted in the Lukumi case, to protect religious exercise in very few situations. Before Masterpiece, they claim, “judges quite properly perceived that the [Employment Division v.] Smith rule [which they understand to generally deny protection to religious practice] 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.” They contrast “the broad, general rule in Smith [with] the narrow, animus-based exception in Lukumi.

Their description of existing law is inaccurate. Our amicus brief in Masterpiece explains why; we recapitulate it only briefly here. Lukumi did not say it was adopting a “narrow” rule. True, the ordinances struck down there were gerrymandered to such an degree that they applied to “Santeria adherents but almost no others.”[xi] But that, the Court said, made the case unusual and extreme: the ordinances fell “well below the minimum standard necessary to protect First Amendment rights,” and it was therefore unnecessary to “define with precision the standard used to evaluate whether a prohibition is of general application.”[xii]

Decisions in the Supreme Court and multiple lower courts adopt a broader principle than Lupu and Tuttle’s. Free exercise prevents the state not just from showing active “animus” toward religion, but also from “devaluing” it—treating it as less important than analogous secular claims. These decisions hold that when the state recognizes even one or a few exceptions to a law for secular conduct, it must recognize an analogous religious exception. If it does not, its treatment of religion is neither neutral nor generally applicable under Smith and Lukumi.

Thus, Sherbert v. Verner[xiii] held that religious minorities could not be denied unemployment benefits when they refused particular work for sincere religious reasons. The Court did not find that the state’s denial of benefits showed “animus”; rather, religious reasons for refusing work had to be protected because, under state law, a few secular reasons for refusing work (very far from all) were already protected.[xiv] Lower-court decisions have invoked this broader principle to protect, among others, Muslim police officers seeking to wear beards, Native Americans seeking to possess bird feathers, and Orthodox Jews seeking to build a synagogue[xv]—all protected because the state had recognized one or a few exemptions for analogous secular interests.

This broader protection is supported not just by precedent but by constitutional logic. Treating religious interests as less important than the analogous secular interests that are exempted is inconsistent with the status of religious exercise as a constitutional right. If free exercise protects only against “animus” directed uniquely at religion, it allows religion to be treated as badly as other interests the state regards as unimportant. But a constitutionally protected interest is important: Free exercise should be treated as well as the state treats other interests that it values.

Masterpiece should come out the same way under either an “animus” or a “devaluing” standard. The secular interests that Colorado protected—the other bakers’ right to refuse anti-gay cakes—were squarely on the opposite side from Phillips on the divisive question of same-sex marriage. Protecting those bakers but not Phillips made for evidence of animus toward his religious beliefs as well as devaluing of them. But the overall standard—the question whether free exercise protection is meaningful or “narrow”—matters for other cases protecting religious minorities.

A deeply polarized society must protect both sides’ ability to live according to their deep identities. Obergefell and nondiscrimination laws rightly do this for same-sex couples. A narrow exemption to such laws for vendors like Phillips protects them from having to permanently surrender either their conscience or their occupation.


[i] 135 S. Ct. 2584 (2015).

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

[iii]Brief of Christian Legal Society et al. as Amici Curiae in Support of Petitioners, in Masterpiece, at 18-21.

[iv] Masterpiece J.A. 161.

[v]Craig v. Masterpiece Cakeshop, 370 P.3d 272, 276 (Colo. App. 2015).

[vi] Masterpiece Cakeshop—A Troublesome Application Of Free Exercise Principles By A Court Determined To Avoid Hard Questions, Take Care, June 7, 2018.

[vii]Brief of Church-State Scholars as Amici Curiae in Support of Respondents, in Masterpiece

[viii]Colorado regulations define religious discrimination to include discrimination against “all aspects of religious beliefs, observances or practices … as well as the beliefs or teachings of a particular religion, church, denomination or sect.” 3 Colo. Code Regs. § 708-1:10.2(H).

[ix] 505 U.S. 377 (1992) (invalidating ordinance that proscribed words “arousing anger, alarm or resentment” based on categories in civil-rights laws).

[x] 137 S. Ct. 1744 (2017) (invalidating provision denying federal registration for trademarks that “disparage” other persons).

[xi] 508 U.S. at 536.

[xii] Id. at 543.

[xiii] 374 U.S. 398 (1963).

[xiv] See Employment Division v. Smith, 494 U.S. 872, 884 (1990) (explaining Sherbert on this basis).

[xv] In, respectively, Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999); Horen v. Commonwealth, 479 S.E.2d 553 (Va. App. 1997); and Midrash Sephardi v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004). See Douglas Laycock and Steven T. Collis, Generally Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 19-23 (2016) (discussing cases from four federal circuits, two states, and two federal district courts).

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