//  10/30/17  //  In-Depth Analysis

By Thomas C. Berg and Douglas Laycock

In a post on this site, Jim Oleske criticized an amicus brief we filed in the Supreme Court in the Masterpiece Cakeshop case. Our brief supported Jack Phillips, the baker who decided that he cannot in conscience “design and create a cake to celebrate [plaintiffs’] same-sex wedding.” Those are the lower court’s words, stating what the same-sex couple asked Phillips to do. Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (Colo. App. 2015). Our brief, filed for several religious and religious-freedom organizations, focuses on Phillips’s claim under the Free Exercise Clause. We argue that as applied to Phillips, Colorado’s non-discrimination law fails the requirements that it be “neutral [toward religion] and generally applicable.” Applying the law to Phillips is therefore subject to compelling-interest review.

The key fact is this: Colorado has protected several bakers who refused to design cakes condemning same-sex relationships, but it held Phillips liable for refusing to design a cake celebrating a same-sex wedding. The state agency held that the other bakers did not commit religious discrimination against the fundamentalist Christian who asked them for a cake, but it held (and the state court agreed) that Phillips committed sexual-orientation discrimination against the gay couple who asked him for a cake. We argue (at 18): “This unequal treatment of conscience, discriminating between squarely opposite sides on a deeply divisive moral issue, is neither neutral nor generally applicable.”

We have long argued for protecting the liberty of both same-sex couples who seek to marry and religious believers who dissent from such marriages. So too here. An objector like Phillips who raises a claim of conscience in the religiously significant context of a wedding should be protected as much as those on the other side of the culture war over marriage equality.

Oleske says little, relatively speaking, about the unequal treatment of the two sets of bakers. That is because he says that the Free Exercise Clause prohibits only laws “targeted at religion.” Nondiscrimination laws do not, in their enactment, target religious reasons for discriminating. By contrast, our brief argues (at 21) that a law burdening religious exercise “is not generally applicable unless it applies to all or substantially all analogous secular conduct”; “even narrow secular exceptions make a law less than generally applicable.”

The Court announced the rule of neutrality and general applicability for free exercise cases in Employment Division v. Smith, 494 U.S. 872 (1990); it then applied the rule to protect a religious practice in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (protecting the sacrifice of animals by Santeria, an Afro-Caribbean religion). The Court’s phrase “generally applicable” (or sometimes, “general applicability”) fits poorly with Oleske’s claim that it forbids only “targeting” religion or singling religion out for uniquely adverse treatment. A law that applies to religion and two or three secular analogs is not generally applicable. In ordinary English, a generally applicable law is one that applies to everybody, in all similar situations—or at least to nearly everybody and nearly all similar situations.

In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text.

Oleske makes much of the fact that in Lukumi the city permitted multiple other types of killings of animals; Santeria sacrifices were among the very few types restricted. But the Court explicitly said that the facts of Lukumi were far from the only ones in which a law would fail to be generally applicable. 508 U.S. at 543 (“[T]hese ordinances fall well below the minimum standard necessary to protect First Amendment rights.”) (emphasis added). The phrases that Oleske quotes from Lukumi’s account of the challenged ordinances—that the law was “drafted with care” and regulated “religion alone”—were not the reason why the Court ruled for the Santeria. They were the reason why the Court found it an easy case.

The reason the ordinances were unconstitutional is that they “fail[ed] to prohibit nonreligious conduct that endangers these [state] interests in a similar or greater degree than Santeria sacrifice does.” 508 U.S. at 543.  The standard Lukumi announced is that the Free Exercise Clause protects “religious observers against unequal treatment.” Id. at 542.

Limiting the Smith/Lukumi rule to cases of “targeting” cannot explain the Court’s earlier decision in Sherbert v. Verner, 374 U.S. 398 (1963), a case that Smith explicitly reaffirmed but that Oleske fails to mention. Sherbert and another decision, Thomas v. Review Board, applied compelling-interest review to unemployment-compensation statutes that denied benefits to claimants who refused work that conflicted with their religious obligations. Smith reaffirmed these precedents, saying that they applied strict scrutiny because the unemployment-compensation law allowed individuals to receive benefits if they refused work for “good cause.” When the state thus allows such “individualized exemptions” from the requirement of accepting work, “it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”

The statute in Sherbert was not generally applicable, the Court said in Smith, because it allowed “at least some” exceptions. 494 U.S. at 884. As we wrote in our brief (at 23-24): “There are not many acceptable reasons for refusing work and claiming a government check instead, but there were ‘at least some,’ and therefore, the state also had to recognize religious exceptions.”

It does not matter whether the secular exemptions in a case are categorical or “individualized”; either way, the law fails to be generally applicable. Smith relied on an individualized exception in distinguishing Sherbert; Lukumi relied on categorical exceptions such as fishing, hunting, and meat production. “[C]ategories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.” 508 U.S. at 542. The Court did not say that categories matter only when religion is targeted.

Oleske objects that our argument “would effectively overrule Smith in a great number of situations” by requiring exemptions. His suppressed and question-begging premise is that Smith simply must be read to reject all or most claims to exemption. But what Smith means is the question to be determined. Oleske’s requirement of targeting or singling out religion is flatly inconsistent with what Smith said about Sherbert. It is inconsistent with much of the reasoning in Lukumi.  And we see no problem with the Court determining, especially after experience with the Smith rule, to read that rule in a relatively protective way rather than a wholly unprotective way. The Court has already announced an important limit on Smith’s reach: strong protection for religious organizations on matters of their “internal governance.” Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 188 (2012).

Oleske admits that “the Court viewed Lukumi as an extreme case and deliberately left unclear the appropriate methodology for deciding closer cases.” He concedes that under Lukumi our analysis of the general-applicability requirement might be “viable.”

What forecloses our argument, Oleske claims, is City of Boerne v. Flores, 521 U.S. 507 (1997), which invalidated application of the Religious Freedom Restoration Act (RFRA) to state and local laws on the ground that the statute departed from the free exercise rule declared in Smith (i.e., neutrality and general applicability). But while Smith’s rule was certainly relevant to Boerne, the meaning of the rule was not relevant, for RFRA departed from Smith under any interpretation. RFRA triggers the compelling-interest test whenever government imposes a “substantial burden” on religious exercise; it requires no showing of a lack of neutrality or general applicability, however those terms are defined. As our brief (at 35) said, Smith’s rule was merely a “background assumption” in Boerne

The Court characterized Smith, and characterized RFRA, in ways that rhetorically maximized the gap between them. But these conclusory characterizations were not a considered or authoritative interpretation of either Smith or RFRA. No one briefed the meaning of Smith and Lukumi, or the meaning of RFRA, in Boerne. The case was about the meaning of Section 5 of the Fourteenth Amendment, and that is where both the parties’ attention and the Court’s attention were focused.

Multiple lower-court decisions have rejected the narrow “targeting” rule and have protected religious claims when the government has granted even a small number of exemptions for secular conduct. As our brief noted (at 24), the decisions come from “four federal courts of appeals, the Iowa Supreme Court, the Virginia Court of Appeals, and federal district courts in two more circuits.” These decisions have protected Muslims, Native Americans, Orthodox Jews, and Old Order Mennonites, as well as conservative Christians. None of them required “targeting” religion in the sense of singling it out for regulation.

Two of these decisions required a religious exemption because the government exempted a single instance of analogous secular conduct. In Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999), an opinion written by then-Judge Samuel Alito, the Third Circuit held that a police department must exempt Muslim officers from a prohibition on wearing beards because it had already exempted officers with a skin condition that made shaving painful. The department had not targeted religion in the sense of singling religion out, but it had “made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.” Id. at 366. In Midrash Sephardi v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), the court applied compelling-interest review to the exclusion of religious assemblies from the town’s business district. The stated goal of the zoning ordinance was to create “retail synergy” in the business district. Id. at 1234-35. A single exemption for lodges and private clubs “violates the principles of neutrality and general applicability because private clubs and lodges endanger Surfside's interest in retail synergy as much or more than churches and synagogues.” Id. at 1235.

Oleske fails in his effort to distinguish these two cases. He notes that in Fraternal Order of Police, the court said that the department’s decision to provide a medical exemption while refusing a religious exemption “is sufficiently suggestive of discriminatory intent” to trigger heightened scrutiny under Smith. 170 F.3d at 365. But Fraternal Order of Police made clear, in the very paragraph that Oleske cites, that the impermissible “intent” was simply “the government's deciding that secular motivations are more important than religious motivations.” 170 F.3d at 365.

Similarly as to Midrash Sephardi, Oleske says that religious assemblies were excluded “because of their religiosity.” But the fact that showed that the town had “improperly targeted religious assemblies” was simply its “failure to treat the analogous groups equally.” 366 F.3d at 1235. The “analogous groups” were the private clubs and lodges that the ordinance permitted. Whatever terms these courts used, the relevant point is that they found that granting one analogous secular exception and denying the religious exception sufficed to show devaluing of religion.

Oleske claims that intent can be shown only when “the same, small decision-making body simultaneously approves” the secular conduct and disapproves the religious conduct. But that claim has no basis either in logic or in the opinions he relies on. Neither opinion says a word about simultaneity. Separate value judgments, at different times, are made against a common standard. The rule maker compares a proposed secular exception to the need for an exception-free law. Whether earlier, simultaneously, or later, it compares the proposed religious exception to the need for an exception-free law. It concludes that the secular need is important enough or sympathetic enough to deserve an exception and that the religious need is not. That comparative judgment is what devalues religious exercise.

Contrary to Oleske’s assertion, the judgments in Fraternal Order were widely separated in time. The no-beard policy there was enforced against Muslim officers beginning in 1997; the medical exception was much older. The plaintiffs said that “[s]ince the March 23, 1971 Special Order No. 71-15, there has been an exception carved for those officers with ‘medical clearance’, to wear beards.” Appellees Brief at 3, Fraternal Order of Police v. City of Newark, No. 97-5542, 1997 WL 33551290. That might mean that the medical exception was created in 1971; it certainly means sometime well in the past, in the quarter century of experience with the no-beard rule. The police department’s 1997 order referred to preexisting medical clearances that needed to be “‘documented and updated to ensure that medical clearance is current.’” Id. (quoting Memo No. 97-30 (Jan. 24, 1997)). The city’s brief is not available on Westlaw, but the city’s petition for certiorari quoted the same language from the 1997 order. Petition for a Writ of Certiorari at 15, City of Newark v. Fraternal Order of Police, No. 98-1919, 1999 WL 33640720.

In Midrash Sephardi, the provision barring religious assemblies and the provision allowing clubs and lodges were both found in the zoning ordinance, which might have been enacted all at once. Or one or both provisions might have been added by amendment at a time far removed from the other. The city said that its zoning of private clubs was enacted in 1960, and that it had banned churches for “over 40 years.” Town of Surfside’s Answer Brief at 5, 59 n.37, Midrash Sephardi v. Town of Surfside, No. 03-13858-C, 2003 WL 24046080. That imprecision is consistent either with simultaneity or lack of simultaneity. The court doesn’t say, because it didn’t matter.

In Lukumi, the Court found discrimination and devaluing of religion because the city decided in 1987 that religious sacrifice of animals is “unnecessary.” But the state’s court of appeals had decided in 1975 that using live rabbits to train greyhounds is not unnecessary. These were two decisions, twelve years apart, by different branches of government. But they applied a common standard, treating religion worse than racetracks, and the Court said the city had “devalue[d] religious reasons for killing.” 508 U.S. at 537.

We need not look nearly so far for devaluing in Masterpiece Cakeshop: the state court made it plain in its discussion of the secular and religious claimants. The court gave multiple rationales for protecting the pro-gay-marriage bakers that it omitted or interpreted differently for Phillips. We detailed these inconsistencies over two and half pages of our brief; Oleske mostly ignores them. It is easiest to quote from our brief (at 18-19; we have inserted the West-reporter cites from the lower-court opinion in brackets):

The court of appeals … said that petitioner’s objection to the message he said his cake would send—his confessed “opposition to same-sex marriage”—discriminated against the same-sex couple that wanted him to send that message. [370 P.3d at 282 n.8.] The protected bakers also objected to “the offensive nature of the requested message,” but the court said that refusing to make a cake with that message did not discriminate against the very conservative Christian requesting that message. Id.

The protected bakers’ willingness to produce cakes with other “Christian themes” for other Christian customers was treated as exonerating. [370 P.3d at 282] n.8. Petitioner’s willingness to produce other cakes and baked goods for respondents and other same-sex couples was treated as irrelevant. Id. at [282].

For the protected bakers, the court assumed that the message would be the bakers’ message and not the customer’s; the bakers could lawfully object to “the offensive nature of the requested message.” Id. at [282] n.8. For petitioner, the court said that his cake would send no message, but if it did send one, it would be the customer’s message, not the baker’s. Id. at [286]. 

For petitioner, the fact that he would merely be complying with the law meant that he would send no message. Id. at [286-87]. For the other bakers, this argument went unmentioned.

Clear inconsistencies in reasoning are powerful evidence that one claim is being devalued. See, e.g., Village of Arlington Heights v. Metropolitan  Housing Development Corp., 429 U.S. 252, 267 (1977) (discriminatory intent can be inferred “if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”).

Oleske says that the two refusals are different because Phillips discriminated against the couple based on their sexual orientation, while the protected bakers did not discriminate against their customer based on his Christian religion but rather declined to write an objectionable message. Both sets of bakers declined to produce a message they found objectionable. And each objectionable message was associated with a protected class of customers. Refusing to produce such a message either discriminates against the protected class or it does not.

Contrary to Oleske’s assertion, we did not argue that “opposition to same-sex marriage is inextricably linked to Christians.” What the customer wanted on his cake was a specific quotation from Leviticus. That quotation is inextricably linked to a certain narrow understanding of Christianity and Judaism. And Colorado prohibits discrimination on the basis of “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). The protected bakers refused the customer’s request because of his particular religious practice, belief, or teaching.

Moreover, to say that only the protected bakers would have been sending a message is to assume, without argument, a key issue in the case. As our brief pointed out (at 19-20), Phillips

could surely assume that [the couple] wanted some words or symbols on the cake, and an essential part of his task was to help them choose those words and symbols. In any event, the very purpose of a wedding cake is to celebrate the wedding and the marriage, with or without an inscription.

The messages implicated in an instance of conduct can be implicit as well as explicit, as is shown by the flag-burning cases among many others. In the Colorado court’s own words (370 P.3d at 276), Phillips was asked to “to design and create a cake to celebrate a same-sex wedding.”

Finally, Oleske says that the fundamentalist Christian customer wanted a derogatory message and that the bakers would not produce such a message for anybody. But this is just a way of relabeling the clear viewpoint distinction between the two sets of messages. Where private expression is concerned, the state may not distinguish between “derogatory” and non-derogatory messages. Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.

Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.

Whether this unequal treatment can be justified by a compelling government interest is not the subject of Oleske’s post or of this response. For reasons explained in the brief, we think that there is no compelling interest in this case, where other bakers were readily available and where Phillips would have to permanently surrender his conscience or his occupation to avoid a one-time dignitary harm to same-sex couples. The case would be different if Phillips were discriminating generally and not just in the religious context of celebrating a wedding, or if the business were large and impersonal, or if no other baker were readily available. Here, as in other contexts, it possible to provide meaningful protection for both same-sex couples and religious dissenters. 

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