I finally got around to reading in full the opinions in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission. David French has a much more optimistic view of the wide ranging portents for religious liberty, and is joined in that assessment by the editors at National Review. Andy McCarthy and Darel Paul, among others, are not so cheery. The latter reads the tea leaves of the five different written opinions and predicts other religious liberty litigants would not fare as well in future cases not involving such manifestly biased commissions.
Personally, I tend more towards French’s position, though I’m more reticent to see a great victory here than he is. What I’m more interested in is going through the five written opinions, because rarely has one Supreme Court case offered a clearer picture of the distinctions in how different Justices value the sanctity of religious liberty through a constitutional prism. In a sense, the opinions offer us a ladder of liberty, so to speak, with the top rung being more mindful of the value of the first amendment protections regarding speech and religious liberty.
Let’s start with the bottom rung, occupied unsurprisingly by Ruth Bader Ginsburg and Sonia Sotomayor. The former wrote the dissenting opinion (joined by the latter). Ginsburg would have unequivocally voted against Jack Phillips, or, as she writes, “I strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case.” Telling language considering they were not named litigants in the case, unless of course we’re lumping them in with the Et Al in the full case title. First, she argues that a wedding cake contains no clear expressive content. Then she claims – falsely – that Phillips denied a service to a homosexual couple he would have provided to a heterosexual couple.
As even the CCRC seems to concede, it is not the service that is at issue. Phillips would have produced other baked goods to Craig and Mullins, even presumably a wedding cake purchased for a heterosexual couple. Similarly, Phillips declined baking a cake for Craig’s heterosexual mother because the cake would have celebrated a gay marriage. Ginsburg attempts to distinguish the CCRC’s judgment against Phillips from a separate decision to permit another bake to decline baking a cake with an anti gay marriage theme, again falsely claiming that Phillips’ decision was based on the sexual identity of the couple requesting the service, whereas the other baker’s decision was motivated by the message on the cake. But this only works if one denies the expressive content of the cake, which almost all the other judges concede at one level or another. Ginsburg also turns a blind eye to the anti-religious content of several of the commissioners’ statements. She doesn’t see the discrimination – and even if one or two of the commissioners expressed some prejudice, so what? It doesn’t overcome the decision not to bake the cake. So Ginburg – and presumably Sottomayor – are okey dokey with outright hostility to the exercise of first amendment rights in the interest of non-discrimination.
Up a rung on the ladder are Justices Kagan and Breyer. They voted with the majority, but they based their decision primarily on the CCRC’s naked hostility toewards Phillips. Yet Kagan (whote wrote the opinion, joined by Breyer) doesn’t think his situation was similar to that of William Jack, the man who sought to have an anti-gay marriage cake made. They argue that the bakers who refused to bake the cake did not contravene the state’s public accommodation laws. “In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else – just as CADA requires.” But this distinction turns on whether Phillips singled out Craig and Mullins because of their sexual orientation, or rather, the refusal was based on his reluctance to participate, even tangentially, in the celebration of an event which was at odds with his religious convictions.
The truly disturbing part of Kagan’s opinion, as is often the case, comes in a footnote. The footnote is largely dedicated to rebutting Justice Gorusch’s concurrence, which I’ll get to in a moment. Kagan doesn’t see the inherit expressive nature of the wedding cake, arguing that while the bakers in the Jack case would not have baked a cake with an anti-gay message for anyone, Phillips otherwise makes wedding cakes for heterosexual marriages. In her words, “The cake requested was not a special ‘cake celebrating same-sex marriage.’ It was simply a wedding cake – one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.” Kagan posits that a wedding cake is just a wedding cake. In the narrowest sense this might be true, but this is nothing more than a coy evasion of reality. The meaning of the cake, as far as Phillips is concerned, truly changes in nature if the marriage being celebrated is between a same-sex couple. Kagan’s argument is just a little too cute.
Kagan turns a blind eye to Phillips’ religious objections later in the footnote. Because a wedding cake is just a wedding cake, Phillips is discriminating based on the sexual orientation of his prospective customers, and this decision “has nothing to do with Phillips’ religious beliefs.” This nearly beggars belief. It is no technical distinction to note that Phillips’ refusal is manifestly not based on the sexual orientation of the couple in question, but in the action they are celebrating, and thus Phillips’ objections are clearly religious in nature.
The concurrence in general, and the footnote in particular, makes clear that Kagan and Breyer would have decided against Phillips had the CCRC been less inept, meaning that there are four sitting of the justices on the Supreme Court whose commitment to religious liberty is rather weak at best.
So we’ve reached the middle rung, and surprise surprise, we find Anthony Kennedy. Even when he reaches the right conclusion, Kennedy’s opinions read like the ramblings of a middling college philosophy major.
Kennedy wrote the opinion of the Court in a decision that hinged on two elements, outlined above: the CCRC’s failure to treat Phillips’ religious freedom in an objectively neutral manner, and their disparate treatment of the bakers who refused service to William Jack and Phillips’ refusal to serve Craig and Mullins.
Kennedy opens up with an effort at deep profundity. “This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.” Reading this, it’s hard not to feel deeply nervous that our constitutional freedoms are in the hands of someone with the sensibilities of a goth emo kid.
Kennedy makes several allusions to the fact that the events of this case transpired before Obergfell, and thus before Colorado recognized same-sex marriage. Kennedy never directly says that the decision would have been altered in a post-Obergfell setting, but it would not be out of line to read that much into the decision. This distinction should have no bearing on the outcome. Colorado’s recognition of Craig and Mullins’ marriage should have no more legal weight. It’s not as though Phillips would have been participating in an illegal act, thus justifying his refusal.
The most troubling aspect of Kennedy’s opinion, and the one which justifies the pessimism of some of the commentators linked above, comes about halfway through:
When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet 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.
It seems Justice Kennedy is standing at the ready with his pen and paper ready to check-off who within the marriage industry is eligible to make religious freedom claims.
On the other hand, French’s cause for optimism can be found in the latter half of Kennedy’s opinion. He makes a much firmer case that the CCRC acted irrationally in distinguishing the Jack and Phillips cases.
The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.
Later, he adds, “The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.” This is all a bit more meaty than the contention that the CCRC would have been justified in rejecting Phillip’s claims had they been more temperate in their language. Here Kennedy seems to be making a much stronger argument calling for consistency in the application of viewpoint discrimination claims.
This is not exactly a homerun for religious liberty, because future commissions could just universally rule against all bakers, and Kennedy would be okay with first amendment violations so long as the states were consistent in application. So, as we seemingly always are after Justice Kennedy has ruled, we are left in a state of constitutional limbo.
Moving up the ladder we have Justice Gorsuch, who wrote a concurring opinion, joined by Sam Alito. Gorsuch’s opinion is mainly dedicated to dismantling Kagan’s concurrence, which I discussed above. He outlines the facts in the William Jack case and the Phillips case, noting that the bakers in the Jack case and Phillips all refused to bake the requested cake due to their personal convictions, and not based on the characteristics of the customers being refused service. For example, the bakers in the Jack case would have refused to bake the same type of cake for an atheist customer, and Phillips would not have baked a cake celebrating a same-sex wedding for a heterosexual customer. The Commission thus acted inconsistently, and presumed to know that Phillips’ actions were based on anti-gay animus whereas the three bakers who refused to serve Jack were not influenced by anti-religious animus. He adds:
The Commission cannot have it both ways. The Commission cannot slide up and down the mens rea scale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required (as the Commission held in Mr. Jack’s case), or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips’s case).
This serves as a good rebuttal to Kagan, but is only a somewhat stronger explication of the constitutional problem than Kennedy, as itstill leaves us in the conundrum that another commission in the future can avoid constitutional issues so long as it applies its actions consistently. But Gorsuch wasn’t done there, as he continues to hammer home that the CCRC’s decisions were inconsistent. He writes that while states have enacted many anti-discrimination laws in light of the legal recognition of same-sex marriage, “it is also true that no bureaucratic judgment condemning a sincerely held religious belief as ‘irrational’ or ‘offensive’ will ever survive strict scrutiny.” Gorsuch goes further, writing “Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a religious freedom.” Gorsuch’s opinion (joined by Alito) taken in totality would indicate a Justice who would be skeptical of any state actions impinging First Amendment freedoms.
We’ve now reached the highest rung, and it should come as no surprise that it is occupied by Clarence Thomas, whose opinion (joined in part of Gorsuch) is a much more absolute defense of religious and expressive freedom.
Out of the gate, Thomas attacks both the CCRC and the law itself with characteristic bluntness.
Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado’s public-accommodations law is enough on its own to violate Phillips’ rights.
As always, Thomas would go much further than the Court wants to go. He addresses Phillips’ larger free speech claims. The Commission argues that people would have assumed Phillips, had he acquiesced to the Commission’s demands, was merely complying with the state’s public accommodations laws and not expressing a pro-gay marriage viewpoint so long as he posted a sign to that effect. Thomas writes that this “flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.”
Thomas goes through the Court’s history (and indeed American history in general) to demonstrate the wide latitude it has given on what is deemed expressive content.
Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.
Once the Court has deemed an activity to be expressive, the “Constitution limits the government’s authority to restrict and compel it.” Phillips believes his baking to be expressive content. The Commission’s suggestion that Phillips could merely have posted a disclaimer noting he doesn’t personally endorse gay marriage would absolutely violate Phillips’ first amendment rights, and would justify any state law compelling certain activity.
Finally, Thomas ends with an absolute defense of free speech and freedom of religious exercise.
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will.
I don’t think it takes a detective to figure out how Thomas would vote on a wider first amendment claim.
So we’re left with a pretty clear picture of where all the justices stand. Well, almost all, as the Chief Justice did not sign on to any concurring opinion. Presumably he’s with Kennedy, but his reticence to sign on to either Gorsuch’s or Thomas’s concurrence could merely be strategic. As always with John Roberts, we’re left guessing.
In the end, the picture for religious and expressive liberty is muddled. To add to the uncertainty, it’s possible Kennedy will retire this summer, though I would wager it’s no better than a 50/50 proposition he will. It befits a man of his judicial and philosophical temperament that he would have a Hamlet-style internal monologue about retirement. And though Clarence Thomas is the only Justice absolutely committed to defend against state encroachments on First Amendment freedoms, I think it’s fair to assume Gorsuch (and Alito as well) would, at the very least, be highly critical of state encroachments on the First Amendment.
That our constitutional freedoms are so tenuous is subject matter for another time – maybe even a book.
The Cranky Conservative 