Well, it’s June — the month that the United States Supreme Court customarily issues its decisions in the highest profile cases of its term. True to form, the Court last week issued its decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a/k/a the wedding baker case. As has becvome all too common in major Supreme Court cases, the result — instead of providing clear guidance for lower courts deciding similar cases — leaves us with a tangle of overlapping decisions that is likely to create more confusion than clarity. It’s a result only a law professor could love.
The good news, for lovers of religious freedom, is that seven of the nine Justices held that the Colorado Civil Rights Commission violated the baker’s right to free exercise of religion when it held that his refusal to custom bake a wedding cake for a same-sex wedding violated the Colorado Anti-Discrimination Act. The bad news is that it did so on factual grounds so narrow that its holding will have little value as precedent for future cases. If you’re confused, then I’ve succeeded in conveying to you what it’s like to try making sense out of the five decisions the various Justices of the Court issued in this case.
In my earlier post on this case, I expressed doubt that the Court would be willing to reconsider the current state of its free exercise jurisprudence, which since its 1990 decision in Employment Division v. Smith has left the free exercise of religion as the least well protected of our constitutional freedoms. I predicted that the Court, rather than revisit its precedents in this area, would decide the case on the basis of freedom of expression for which it has had more sympathy. I was far from alone in these expectations.
It turns out that I was half right. As predicted, the Court didn’t signal any interest in revisiting its holding in Employment Division v. Smith, in which the Court held that
the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
Only Justice Neil Gorsuch, the Court’s newest Justice (in a concurring opinion joined by Justice Samuel Alito), hinted at a greater openness to free exercise challenges than Smith contemplates, noting that the Smith decision “remains controversial in many quarters.”
The Court did not, however, decide the case on freedom of expression grounds, as I thought it would. Only Justice Clarence Thomas (in a concurring opinion joined by Justice Gorsuch) addressed the freedom of expression issue. He held that the Court, in addition to determining the free exercise issue, should have reached the freedom of expression issue as well. The other opinions, purportedly because of some factual ambiguity in the record, did not reach the merits of that issue.
So on what ground did the Court base its decision? The majority opinion, written by Justice Anthony Kennedy, relied on the one avenue that the Smith decision left open, based on the proposition
that a state would be prohibiting the free exercise of religion if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.
In other words, the Court in Smith left open the possibility that a governmental agency might single out a religiously motivated activity for unfavorable treatment, a circumstance in which even the Smith majority recognized would be constitutionally defective.
Not surprisingly, this exception doesn’t come up very often, as it requires a governmental body both brazen enough to openly target a religious activity and foolish enough not to hide it very well The only previous Supreme Court case I’m aware of utilizing this Smith exception was Church of Lukumi Babalu Aye, Inc. v. Hialeah, a 993 case involving a municipal ordinance that prohibited the Santeria practice of animal sacrifice but did not apply to slaughterhouses. In that case, the Court held that the ordinance overtly targeted the religious use and was thus an infringement of the group’s free exercise rights.
It takes some creativity to fit the facts of this case into the narrow space left by the Smith holding, but apparently the Court’s majority was up to the task. Their basic premise was that
the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor. That requirement was not met here. When the Colorado Civil Rights Commission considered it did not do so with the religious neutrality that the Constitution requires.”
Although his majority opinion reviews the facts of the case in detail, Justice Kennedy’s conclusion that the baker’s rights had been violated was based primarily on three factors. The first was that, at the time these events were taking place, Colorado did not yet recognize same sex marriage. The second was that, at around the same time, an unrelated individual asked three wedding bakers to bake cakes containing messages in opposition to same sex marriage. The bakers refused, and the Colorado Civil Rights Commission — the same body that rejected the right of this baker, Jack Phillips, to refuse to bake a same sex wedding cake — upheld the refusals of the other three.
Most important, several statements by members of the Commission during the hearing evidenced hostility toward the baker’s religious beliefs. The most egregious of these statements was:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust….we can list hundreds of situations where religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.
So where does this decision leave the free exercise rights of other wedding vendors — the caterers, florists and photographers with conscientious scruples against same sex marriage, some of whom have cases already working their way through the lower courts or relevant administrative agencies? Of the three factors on which the Court majority relies, the first can no longer apply because, by virtue of Supreme Court precedent, same sex marriage is now recognized in every state. The second, while theoretically possible, seems highly unlikely. The last factor could be eliminated by the administrative agency having the good sense to hide its hostility. One would assume that most such agencies have lawyers who would advise them how to avoid creating a record that would enable a future court to challenge their “neutrality.”
In other words, while the decision is good news for Jack Philips — and I certainly don’t begrudge him the sense of relief that he no doubt feels — it leaves the future at best unsettled. Gay rights activists will no doubt continue to make such complaints, and state and local civil rights agencies will no doubt continue to uphold them. Sooner or later, the broader issue of how to weigh the right of same sex couples to marry against the right of religious individuals to decline to participate will get back to the Supreme Court, where, unless there is a change in the composition of the Court, its prospects will be uncertain. Supporters of religious freedom may have dodged a bullet this time, but there’s no reason for complacency.