In the wake of Obergefell v. Hodges (2015) constitutionalizing the right to same-sex marriage, we will see much litigation. North Carolina, for example, recently enacted a law allowing certain state officials to refuse to perform same-sex marriage duties in North Carolina if they cite a “sincerely held religious objection.” The Texas Attorney General issued an opinion that justices of the peace, judges, county clerks, and their employees have a constitutional right of their own to refuse to facilitate same-sex marriages when there may be other county employees and judges willing to do the job.
Is it constitutional for the legislature to allow state officials to bow out of participating in same-sex marriage when the couple seeking the license merely secures it from another? If the law would not carve out an exception, would the state improperly be creating a religious test for office, in violation of the First Amendment?
The cases in the lower courts have not considered such issues yet, but we can expect that they will. Right now, the cases involve primarily bakers and wedding photographers, who have tended to lose. These cases will percolate up to the High Court. It would help the Court if the lower courts spent a little more time discussing the prior case law and flushing out the issues.
Thus far, the lower courts have tended to be conclusory. An example is the recent Colorado appeals court in Craig v. Masterpiece Cakeshop. In July 2012, Craig and Mullins visited a bakery in Colorado, and told Jack Phillips, the owner, to design and create a cake to celebrate their same-sex wedding. Phillips told them them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but said he would be happy to make and sell them any other baked goods. He also objected because of his First Amendment rights.
The administrative law judge found, as a factual matter, that “Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.” This same judge then ruled that Phillips discriminated against the gay couple, in violation of a state law that forbade, in a place of public accommodation, discrimination on the basis of sexual orientation. A bakery, it turns out, is, like a hotel, a place of accommodation. The appeals court rejected all of Phillips’s arguments and ruled that he must bake the cake and thereby participate in the wedding.
No case is an island, because each decision is a precedent, affecting others. Courts explain their decision and their reasoning so that we know how far the legal principle extends. What does the Colorado precedent mean? In this case we know very little because the court spoke in platitudes.
The Colorado court acknowledged that designing, baking, and presenting the wedding cake has a speech element. “Masterpiece’s contentions involve claims of compelled expressive conduct.” Actions can be speech, like waving a flag. Quoting a U.S. Supreme Court case, the Colorado court said that when “speech” and “non-speech” are “combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.” So, what is this important government interest?
It turns out that when Mr. Phillips refused to create the cake, Colorado, in its state constitution and its statutes did not allow same-sex marriages. Yes, Colorado itself discriminated against same-sex marriage while punishing those who disagreed with the state. Indeed, Colorado law made clear that it would not recognize a same-sex marriage even if the parties were validly married under the laws of another state. What does the Colorado court say about that? Nothing. How can the state interest be such an important governmental interest when Colorado itself discriminates? The court ignores that and says nothing.
Let us say a KKK member walks into a bakery and tells the baker to make a cake that says, “Black lives don’t matter.” Or, “God bless the Klan.” Can the state force the baker to design, bake, and deliver the multi-tiered cake to the cross burning and Klan gathering? Does the state have that constitutional power? What does the reasoning of the Colorado court say about that issue? Nothing.
In R.A.V. v. City of St. Paul (1992), the City of St. Paul charged R.A.V. (a juvenile) with violating a city ordinance prohibiting bias-motivated disorderly conduct. R.A.V. burned a cross on a black family’s lawn. The Court held that the ordinance, on its face, violated the First Amendment because it imposed special prohibitions on speakers who express views on certain disfavored subjects, “race, color, creed, religion or gender,” while not punishing displays containing abusive invective if they are not addressed to those topics. For example, under the law, one could hold up a sign saying, all “anti-Catholic bigots” are misbegotten, but not that all papists are because the former does not attack a religion while the latter does.
In the Colorado case, the statute allows the baker to discriminate and refuse to bake a cake for a variety of reasons—the baker doesn’t like the purchaser’s looks; the purchaser cuckolded the baker and the baker does not want to bake the celebratory cake; the purchaser ran over the baker’s dog a decade earlier; the purchaser is too old and wrinkled. Like the law in R.A.V., only certain categories are within Colorado’s prohibition.
The Colorado law does not apply to bakers who refuse to bake cakes that favor traditional marriage; it applies only to bakers who refuse to participate in same-sex marriage. An organization that opposes same-sex marriage found that a baker’s dozen (13 bakers) would refuse to bake a cake that says, “Gay Marriage Is Wrong.” This organization has posted the video on the web. This distinction the Colorado law makes between favored and unfavored speech looks a lot like the law that R.A.V. invalidated it drew distinctions between favored and unfavored speech. What does the Colorado court say about the application of R.A.V.? Nothing.
The Colorado court does understand that free speech affects this case: “We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated.” What does the court say about that? Only this: “However, we need not reach this issue.” The baker did not want to design any cake that celebrates same-sex marriage, and the gay couple would want a cake that celebrated their union. How can the court not reach the issue that is at the center of the cake?
The Colorado court did acknowledge Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). That case involved the Santerias, a religious group that engages in ritual sacrifice of animals such as doves. The City of Hialeah enacted several ordinances to forbid this animal killing. Justice Kennedy, for the Court, invalidated them. To survive a free exercise challenge, the law must be neutral and of general applicability. For example, a state law that forbids all murder applies to a religion that believes in child sacrifice. The law in Church of the Lukumi Babalu Aye fails that test because, the Court explained, it was not neutral and not of general applicability: it allowed animal deaths for nonreligious reasons, such as fishing or extermination of rats in the home. There were no dissents.
The Colorado court did not explain how its law is a neutral law of general applicability when the law is not general in its applicability. It allows the baker to refuse to design, bake, and deliver the cake for many reasons, as long as sexual orientation is not one of them. For example, it allows the baker to refuse to bake a cake that supports traditional marriage. The Colorado law even allows discrimination on the basis of sex if that has some relationship to the services provided.
The Court asserted that the law is generally applicable because “it does not regulate only religiously motivated conduct.” But that was the case of the law in Babalu. It did not regulate only religion and it did not prohibit all killing, but it did prohibit “unnecessary killing” when “not for the primary purpose of food consumption.” What did the Colorado court say about that? Nothing.
Runyon v. McCrary (1976), another U.S. Supreme Court case, held that a federal law, 42 U.S.C. § 1981, forbids racial discrimination in making private contracts, but it took pains to say specifically that it was not interpreting that statute to apply to private schools “that practice racial exclusion on religious grounds.” The Court suggested that the statute could not apply to such conduct because of the Free Exercise Clause, which protects more than freedom of conscience; it protects “exercise” of religious beliefs. What does the Colorado court say about Runyon? Nothing.
In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), gay, lesbian, and bisexual descendants of Irish immigrants sought to march as a group in the St. Patrick’s Day parade. The parade’s organizers refused, and the state courts ruled that that this exclusion violated Massachusetts’s public accommodation law, which prohibits discrimination because of sexual orientation. Justice Souter, for a unanimous Court, ruled that requiring the defendants to alter the expressive content of their parade violated the First Amendment.
The Colorado court’s response is that it decided that the wedding participants would not think that the baker was making a statement attributed to him: “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.” If that were good enough to distinguish Hurley, the Supreme Court would have permitted the gay pride float if it posted a sign saying others do not share its views. Moreover, the parade in Hurley allowed floats communicating all types of messages, some contradictory to others and some communicating nothing. Hurley responded, “a private speaker does not forfeit constitutional protection simply by combining multifarious voices.”
Wooley v. Maynard (1977) is another free speech case. The Court ruled that the state cannot require motor vehicles to bear license plates embossed with the state motto, “Live Free or Die.” The owner of the vehicle defaced that motto because, apparently, he did not like the alternatives. No one would mistake a license plate for a bumper sticker. We all know that we place license plates on our cars simply because that is the law. What does the Colorado court say about Wooley? Nothing.
Ultimately, the Supreme Court may affirm the Colorado court or a similar decision. When it finally decides the issue, it would help if the lower courts spent a bit more time discussing and distinguishing the relevant cases.