Monday, June 4, 2018

Some Thoughts on Masterpiece Cakeshop

By now, you have probably already heard that the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. This is the case where the bakery refused to make a wedding cake for a same-sex couple, and was charged with violating Colorado's law against discriminating on the basis of sexual orientation.

The case set up a conflict between the First Amendment's free exercise clause (also, arguably, free expression - but the Court focused primarily on exercise of religious beliefs), and Colorado's civil rights law. The Court ducked the major issues to issue a narrow ruling. Ultimately, the Court ruled for the cakeshop but based on some circumstances that were very specific to this case:
  • At a public hearing, a Colorado commissioner made some stupid comments disparaging the cakeshop owner's religious beliefs as "despicable" and merely "rhetorical," and invoking religious defenses of slavery and the holocaust. That type of anti-religious commentary is a recipe (sorry, I couldn't resist) for First Amendment issues. 
  • "[O]n at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service." In other words, each bakery's viewpoint appeared to dictate the result. That type of disparate treatment just won't cut it (dammit, I can't help myself). 
  • The Court also noted that same-sex marriage was not yet legal in Colorado, but that wasn't really a main ingredient in the Court's opinion - more like icing on the cake (okay okay, I'm done now). 
Perhaps as important as the decision itself is what the decision is not
  • First, the cakeshop here offered to sell the same-sex couple "birthday cakes, shower cakes . . . cookies and brownies." This was not a case about generally refusing service on the basis of sexual orientation. 
  • Even in the context of same-sex weddings, the Court expressed skepticism about how far businesses could go with a First Amendment argument. The Court noted that clergy can obviously refrain from performing marriage ceremonies. "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." Yes, Justice Kennedy, the extent of the exception and its confines are *exactly* why we're here! Alas, he never gets there, relying on the rationale above instead. 
  • This decision is most definitely not a license to discriminate against the LGBTQ community generally. In fact, quite the opposite, as the Court notes: "[I]t is a general rule that [religious and 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."
In short, the eagerly anticipated decision was mostly a dud. A reaffirmation that government agencies can't be openly hostile to religious beliefs and engage in viewpoint discrimination. The Court failed to address the difficult line-drawing issues that will surely keep the lower courts busy in the near future.