//  6/5/18  //  Quick Reactions

In some cases, the public perception of a case — not its actual holding — is what is most important.  The Supreme Court’s decision in Masterpiece Cakeshop looks like one of those cases.  The Court’s opinion in Masterpiece is heartening, despite what some headlines might suggest.  It is perhaps the best loss we could have received.  Here are a few reasons why.

The Court declined to enshrine a right to discriminate in the Constitution.  The Court declined to grant the baker a free speech or free exercise right to discriminate—his principal arguments—either generally or narrowly (say, with regard to wedding products or gay marriage more specifically).  That is a tremendous win for civil rights:  it preserved the decision of the Court for over 50 years to deny all claims to a constitutional right to discriminate and to uphold public accommodations laws that require equal treatment.  The decision leaves all public accommodations laws (including Colorado’s) on the books. 

But the majority went further, to reaffirm the longstanding principle that businesses open to the public have no constitutional right to discriminate, saying that “while religious and philosophical objections [to gay marriage] 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.”

The Court recognized the fundamental point that discrimination is not about access to cakes, just as it was not about access to sandwiches in the 1960s, but instead about the larger social harms that discrimination imposes on a community.  While a minister who objects to performing a same-sex wedding would be constitutionally entitled to do so, the majority stated 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.”

Justices Kagan and Breyer joined the majority.  Based on their questions at oral argument, both appeared to keenly perceive the threat of a broad free speech win against principles of equality, and, more generally, the power of the state to do much of anything.  (A broad free speech right to disobey a law because of what you believe following it may express, even on religious grounds, would draw great swaths of the regulatory state under a constitutional cloud, turning an objector, as the Court said in an opinion over a hundred years ago, into a law unto himself.)  We might wonder about their involvement in reaching such a narrow majority.

Only Justice Thomas, joined by Justice Gorsuch, endorsed a free speech principle that would protect the right of any baker to deny service to a gay couple on constitutional grounds.  (I find noteworthy that Justice Thomas’s separate opinion was broad enough that it would, for example, grant an exemption to civil rights laws not only to objectors to marriages of same-sex couples but also interracial and interfaith marriages). 

Justices Kagan and Breyer presented a roadmap to equality.  Justice Kagan, joined by Justice Breyer in concurrence, laid down a roadmap for states seeking to protect people from discrimination in public accommodations.  States, she said, must simply enforce civil rights laws in a neutral and evenhanded fashion, meaning that the states can find discrimination where a business denies service based on who a customer is rather than for refusing to sell a given product to everyone. 

The case was decided on (almost) the narrowest grounds possible and under well-established constitutional principles.  The Court reaffirmed that a government violates free exercise principles if it enforces facially neutral laws in biased ways that target religious beliefs.  We might dispute whether the facts in this case demonstrated such bias (the ACLU certainly did not think they did), but as a legal principle that is well established law that breaks no significant new ground.

The decision, nonetheless, leaves many big questions for another day (and potentially a Kennedy replacement).  Despite its broad reaffirmation of the constitutionality of antidiscrimination laws, the opinion decides little about the specifics of the key legal principles governing claims to constitutional exemptions to civil rights laws.  Indeed, it begins by listing a myriad of “difficult” questions that such claims raise.  It did not significantly constrain a future Court from coming out in any particular way in a later case, concluding instead that “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re­solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” 

That resolution may occur after Justice Kennedy’s retirement from the Court.  Because the majority opinion was written by Justice Kennedy, and Chief Justice Roberts did not join either of the conservative concurrences that took a broader tack, however, there is reason to believe that while Justice Kennedy remains on the Court there are five votes to uphold neutral applications of public accommodations laws against claims of religious exception—and perhaps even after he leaves. 

All of this means that Masterpiece, by itself, did not do damage to civil rights law.  It also means that what happens outside the courts is now critically important.  Will headlines announcing the baker’s victory encourage a movement to discriminate more broadly against same-sex couples, including in the majority of states where no public accommodations law protects LGBT people?  Or will people understand this to be a narrow ruling that leaves intact our nation’s longstanding laws against discrimination?  On the ground conditions of equality or exclusion will likely depend on that question.

There will no doubt be a lot of commentary on the decision, including some characterizing it as a sweeping victory for the religious right.  But we are best to keep our eye on the ball.  The Court reaffirmed the constitutional principle of equal dignity, but much is still left up to us and perhaps a future Court as to how much we will, as a society, secure that principle.  Court opinions matter, but in many cases, what matters more is what is in the hearts and minds of people across the country. 

Amanda was honored to be part of the ACLU team that litigated Masterpiece Cakeshop before the Supreme Court on behalf of Dave Mullins and Charlie Craig, the couple who was denied service by the bakery.

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