//  10/31/17  //  In-Depth Analysis

In Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission et al., the Supreme Court will decide whether the Constitution overrides anti-discrimination law in the case of a religious baker who refused to serve same-sex couples for a wedding reception. 

It's hard to overstate the importance of this case.  If the Supreme Court accepts the baker's free speech or free exercise claims, it will punch a significant hole in civil rights laws nationwide.  We may soon return to a world in which the idea of equal treatment in the marketplace is reserved only to privileged groups, while the rest are condemned to daily discrimination. There can be no "narrow" rulings in this case.

The parties in Masterpiece have focused most of their energy on the Free Speech Clause issues.  However, the case also raises a distinct Free Exercise Clause claim.  The Constitution's safeguards for civil rights and religious liberty are thus squarely at issue.

Yesterday, through Kaplan & Company, Roberta Kaplan and I filed an amicus brief at the Supreme Court addressing these important free exerise questions.  You can read the brief here.  In writing it, we were privileged to work closely with Take Care contributors—and leading Church-State Scholars—Chip Lupu, Micah Schwartzman, Nelson Tebbe, and Bob Tuttle.  The brief was filed on behalf of a larger group of scholars, including Take Care contributors Larry Tribe, Caroline Mala Corbin, and Richard Schragger. 

Take Care has already hosted a debate between Jim Oleske (here) and Thomas Berg & Douglas Laycock (here) on the religious freedom issues in Masterpiece.  This is an important dimension of the case that the Supreme Court must address if it concludes that the baker's free speech claim lacks merit.  Over the coming weeks, Take Care will host additional commentary on the issues in Masterpiece.

Here is our brief's summary of argument:

Like many free exercise claimants before him, Petitioner presents a sympathetic case. His sincere religious beliefs conflict with legal obligations imposed on all who engage in commerce with the public. As a result, he must decide whether to follow his conscience or obey the law. We do not minimize the gravity of this dilemma for Petitioner, or for other people of faith who confront similar situations.

But that dilemma alone is not the measure of a Free Exercise Clause violation. If it were, this would soon become a nation in which “each conscience is a law unto itself, or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S 872, 890 (1990). America has long offered a home to many religions, each with unique teachings. In untold circumstances, commands of conscience may clash with laws that protect fundamental rights, equal protection, health and safety, free markets, or other social goods. They may also collide with the dictates of other religions in the same community. 

For decades now, this Court has held that incidental burdens on religious beliefs and practices are not sufficient to establish a Free Exercise Clause violation. See id. at 878–880. That is true even when such burdens result in conscientious objections. See, e.g., Gillette v. United States, 401 U.S. 437, 461 (1971). Instead, in Smith, this Court held that religious objectors must still “comply with a valid and neutral law of general applicability.” 494 U.S. at 879 (citation and quotation marks omitted). 

Here, however, Petitioner offers a reading of Smith that defies precedent and would sharply limit, if not overrule, that decision. Even if the Court were prepared to recognize new limits on Smith, this is not the case in which to redefine the jurisprudence of free exercise. Granting a mandatory constitutional exemption to a neutral and generally applicable civil rights law would destabilize free exercise doctrine and public accommodation laws nationwide. It would also infringe on values of dignity and equality.

Petitioner seeks to justify this radical revision by referring to recent advances in gay and lesbian rights. In his view, this is a case about allowing religious people—like married same-sex couples—to live consistently with their identity. As one of his amici writes, the Court should “protect the liberty of both sides.” Christian Legal Society et al. (CLS) Br. at 2. 

But that framing of the case is mistaken. First, it disregards the dynamic and thoughtful deliberation underway at all levels of government about how to balance religious liberty with non-discrimination. In addressing such highly charged issues, this Court has historically proceeded with caution, developing jurisprudence over decades and engaging society in a respectful dialogue. Petitioner, however, would have the Court preempt that process by unleashing a new constitutional rule with no principled limit. And he makes that demand before courts and legislatures have had time to address the questions he asks. 

Second, Petitioner mischaracterizes the facts on the ground. In Colorado, religious people cannot refuse to serve gay people by virtue of their sexual orientation. But neither can gay people (or anyone else) refuse to serve religious people by virtue of their religious identity or motivation. The State has created an even playing field in commerce. When Petitioner refers to protecting liberty on both sides, he smuggles in the far more extreme claim that religious people—but nobody else—should be deemed exempt from the most basic rules that define civil treatment in commerce and social life. Protecting groups against discrimination is not the same as giving only certain groups a constitutional right to discriminate whenever their religion so instructs. 

Finally, Petitioner artificially limits the scope of the principles on which he relies. He suggests that his request for a narrowing of Smith is specific to—and justified by—the issue of same-sex marriage. Yet none of the principles that he offers would support such a limitation. Nor would this Court’s precedent. In another instructive case from Colorado, this Court rejected an effort to single out gays and lesbians for exclusion. See Romer v. Evans, 517 U.S. 620 (1996). It would be peculiar for the same court that decided Romer to hold now that Colorado uniquely lacks the power to protect gays and lesbians in public accommodations. Petitioner’s rule must therefore be seen as a general theory that arises from the context of gay rights but would sweep much further. 

I. This Court’s precedents foreclose Petitioner’s free exercise claim. Under Smith and subsequent cases, the Colorado Anti-Discrimination Act (CADA) is constitutional on its face and as applied to Petitioner. As Smith made clear, a law is both neutral and generally applicable where it does not target or uniquely burden religion. See Smith, 494 U.S. at 879; see also Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 542–546 (1993); City of Boerne v. Flores, 521 U.S. 507, 531–534 (1997). There can be no dispute that CADA is constitutional on its face. The law applies to all public accommodations, and treats the religious and nonreligious alike in protecting certain classes from discrimination. Its only religion-focused exemptions are protective of religious institutions. 

Petitioner’s dominant theme is that religious opponents of same-sex marriage “always lose.” Br. at 42. To support this claim, Petitioner argues that the Commission applied CADA in a manner that failed to protect William Jack, a religious opponent of same-sex marriage. But this claim is unsupported. CADA forbids discrimination on the basis of sexual orientation— whether motivated by pure bigotry, secular morality, or religious belief. And it allows places of public accommodation to refuse to create goods that express opposition to the rights of gays and lesbians, so long as that denial is not based on a client’s religious belief or motivation. Here, CADA was properly applied against Petitioner, who refused services to Craig and Mullens on the basis of their sexual orientation. And it properly provided no relief to William Jack, who was denied services for valid secular reasons unrelated to his religious beliefs. 

Nothing about this enforcement pattern shows antireligious animus. To the contrary, it is entirely typical of civil rights statutes. All anti-discrimination laws forbid disparate treatment of specified classes of customer. And no anti-discrimination laws require that specified classes of customers receive treatment superior to others. Anti-discrimination laws thus level the playing field by declaring that certain historically targeted characteristics are irrelevant to accessing public accommodations. Were the Court to conclude that this pattern is illegal, it would imperil hundreds of statutes nationwide. It would also necessarily redefine neutrality and generality in a manner at odds with Smith, Lukumi, and Boerne. 

Petitioner attempts to shore up his contentions by invoking a “hybrid rights” theory under Smith. See Br. at 46–48. His amici, in turn, gesture vaguely to the Establishment Clause. See CLS Br. at 16. Both of these arguments are without merit. If anything, the Establishment Clause cuts against Petitioner here. 

II. The First Amendment has never been read to require exemption of a for-profit business from public accommodations laws. If this Court were to order such an exemption, there would be no principled basis upon which to limit that ruling. 

Recognizing this fact, Petitioner devotes little time to his proposed limits: (a) that weddings are “inherently religious” events; (b) that he is an “artist” creating personalized goods; and (c) that he operates a small business. Br. at 38. It is clear that none of these limits could confine the broad, disruptive implications of upholding Petitioner’s claim. 

Most important, while Petitioner emphasizes that this case concerns weddings, there is no basis for treating wedding-related services differently under the Free Exercise Clause. Generally, the Court has deferred to claimants on the question of whether specific practices or events are religiously significant. Yet under that deferential rule, there is no end to the conduct that Americans of different faiths might view as “inherently religious.” Weddings are not unique for free exercise purposes, and to hold that they are would be to disregard the sacred significance that other faiths ascribe to many other events. 

In thinking about Petitioner’s broad claim, the Court may find guidance in our history and tradition. Throughout this nation’s substantial experience with public accommodations laws, virtually no jurisdiction has seen fit to create an exemption of the type that Petitioner now demands as a matter of constitutional law. That is not due to disrespect for religion. Rather, it is because most Americans have decided that allowing such exemptions would cause too much harm, to too many people, in ways that matter too much. This insight was born of tragic experience and widespread suffering. It should not be set aside lightly. 

The danger here is not only to civil rights law, but also to religious freedom and the broader cause of civility in American life. If Petitioner prevails, religious persons will have a unique right to deny services in commerce on the basis of otherwise-protected characteristics. As a result, some may start to equate “religious freedom” with a lived experience of economic disadvantage, second-class citizenship, and daily subordination. It is one thing to lack civil rights protections; it is quite another to know that the Free Exercise Clause forbids the state from requiring true equality in the marketplace. It is not far-fetched to imagine that under Petitioner’s legal theory, some citizens would have to consult guides for their gender, religion, or sexuality before setting out to buy essential goods and services.

Especially in these turbulent times, the Court would disserve itself and the nation by unleashing such a disruptive and divisive principle. The proper course is to hold that Smith governs this case and forecloses Petitioner’s free exercise contentions. 


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