//  6/7/18  //  Quick Reactions

Cross posted from Balkinization

By Nelson Tebbe & Larry Sager 

Reactions to the Supreme Court’s decision in Masterpiece Cakeshop have been predictable. Liberals have condemned the outcome, which favored a Colorado baker who refused to provide a wedding cake to a same-sex couple because of his Christian beliefs, and they have portrayed it as narrow. On the other side, most have cheered the decision, sometimes by depicting it as broaderthan it seems. These reactions have the case almost exactly backwards. The Supreme Court in Masterpiece affirmed several broad principles that will shape future conflicts between religious liberty and antidiscrimination law in ways that should support the robust protection of minority rights, including the rights of LGBT citizens. That is the best interpretation of the decision, but it is far from universal. Now is the time to solidify our understanding of Masterpiece, because other wedding vendor cases are still pending in the Supreme Court and in lower courts.

First, all nine justices signed onto the general principle that guides such conflicts: businesses must follow laws that protect customers from discrimination, even when those laws happen to conflict with the religious or moral beliefs of owners or managers. These civil rights protections, which are known as public accommodations laws, are too important to the equality of LGBT citizens to allow for exceptions based on conscience. Writing for the Masterpiece majority, Justice Anthony M. Kennedy treated this doctrine as constitutional bedrock: “it is a general rule that [religious or philosophical] 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.” Justices Sotomayor and Ginsburg dissented because they felt that the couple should win, but they emphatically embraced the Court’s insistence that religion is not a ground for disobeying public accommodations laws. Prominent scholars and lawyers have resisted this guiding principle, and many saw this as the moment for the Court to repudiate it. Instead, the justices unanimously affirmed its importance (though three of the Justices who signed the majority opinion nevertheless tried to cast doubt on this principle in their separate opinions).

Second, the Court removed any doubt that invidious discrimination in the marketplace imposes a harm far more profound than the hassle of finding another cake. As Justice Kennedy explained, if civil rights laws were subject to exceptions on grounds of religion or morality, the result could be widespread refusals of service that would radiate “community-wide stigma inconsistent with the history and dynamics of civil rights laws.” Frequent religious and moral exemptions to public accommodations laws would exacerbate structural injustice. Although this may seem commonsensical, religious advocates and leading scholars had long argued that “dignitary” or “stigmatic” injury to same-sex couples should not count as harm at all, or at least not as sufficiently serious harm to override religious freedom, since only feelings of self-worth are at stake. In our time and place, their argument has seemed to be, same sex couples should be sufficiently resilient to such intangible injuries. In Masterpiece, the Court conclusively rejected that view, and saw the systematic subordination of some groups as an alarming social wrong, independent of the subjective feelings of the members of those groups.

Finally, the Court established that discriminatory sentiments among official decisionmakers can render their actions unconstitutional. The Masterpiece Court stressed the fact that two members of Colorado’s civil rights commission had made insensitive remarks about religious conservatives in the course of ruling that the baker had acted illegally. Largely on the basis of those comments, the Court ruled for the baker, finding that he had been the victim of antireligious “hostility.” (The Court also relied on Colorado’s purportedly disparate treatment of secular bakers, a puzzling argument that does not affect our point.) We join the dissenting justices in seeing the Court’s reaction to those comments as an exaggerated response to clumsy discourse. But we applaud the premise upon which the Court’s ruling rests. The outcome in Masterpiece depends upon the proposition that the Constitution protects members of subordinate groups from government decisionmaking that is infected by hostility, even if that hostility is not absolutely essential to the official action being challenged. In support of that conclusion, Justice Kennedy referred to cases involving racial discrimination. But before Masterpiecethe Court had come to insist on a showing that alleged bias was crucial—it regularly dismissed evidence of racial animus by officials, so long as their bias did not dictate the government’s action. That should now change, and not only in religion cases but all across constitutional law.

Supreme Court opinions determine the obligations of the parties before them, of course, but they do much more. They chart the course of our constitutional future. In Masterpiece, the Court released a baker from the requirement that he serve all customers, including same sex wedding celebrants. We join others in thinking that was a mistake; but it was a mistake based on the particular facts in Colorado. In the course of deciding Masterpiece, every justice on the Court affirmed principles that support the government’s power to ameliorate structural injustice and its obligation to proceed fairly with regard to all of the members of our political community. With those principles firmly in place, the Court should now sit back and let lower courts resolve the remaining wedding vendor cases accordingly.


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