Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop

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Posted in: Constitutional Law

Last week the Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case appears to pit two values that are both central to democracy against one another.

On one side is equality. A Colorado law forbids businesses that open their doors to the public from discriminating on the basis of such illicit criteria as race, sex, and sexual orientation. Thus, a gay couple sought to purchase a cake to celebrate their commitment ceremony from a highly skilled baker. When the baker turned them away, they were not only denied a cake baked by this particular baker; they also experienced the sting of stigmatic injury that typically accompanies invidious discrimination.

On the other side is liberty. The baker sells ready-made goods to LGBT customers but draws the line at wedding-style cakes for same-sex ceremonies because he opposes same-sex marriage. To furnish a custom wedding cake for such a ceremony, he believes, would express the message that he approves of same-sex marriage, contrary to his conscientious belief.

Some philosophers who espoused moral pluralism, like Isaiah Berlin and Bernard Williams, argued that we rightly value both liberty and equality, that these values sometimes conflict with one another, that they are incommensurate, and that therefore the best we can do is sacrifice one for the other by making what is sometimes called a “tragic choice.” Others have disagreed. For example, Ronald Dworkin contended that, properly understood, the Enlightenment values of liberty and equality are allies, not enemies. Dworkin proposed that constitutional democracies properly advance what he called “equal liberty.”

But whether our choices are tragic or not, we must choose. Either the baker must bake the cake or he has a right to refuse to do so.  How should the conflict be resolved?

The short answer is that the baker should lose. Trading off liberty for equality, or, if you prefer Dworkin’s view, finding the point where liberty runs out because it is no longer equal, can be difficult in some cases. But Masterpiece Cakeshop is not one of those cases.

Speech

For reasons spelled out in an amicus brief on behalf of my colleague Professor Steven Shiffrin, UCLA Law & Philosophy Professor Seana Shiffrin, and myself, I believe that the same-sex couple should win in Masterpiece Cakeshop. As our brief elaborates and as Professor Marci Hamilton noted in a column on this site last week, if the baker wins on his free speech claim, anti-discrimination law could be fatally undermined. A cake without an articulate message on it—something like “God blesses this union of two men”—does not constitute the “speech” of the person who baked the cake, because if it does, then hairdressers, cooks, waiters, and just about everybody else would have a potential right to opt out of public accommodations laws.

Yet if the free speech claim in this case should be relatively easy to reject, more difficult cases exist. What about a cake that bears an inscription?

I recently purchased a cake for my daughter’s Bat Mitzvah celebration that was sculpted to resemble a Torah scroll and was decorated with the statement “Mazel Tov.” I was lucky that one of the world’s top ten bakeries, Vegan Treats, was happy to provide it. What if I had gone to a different bakery, not realizing it was owned by an anti-Semite? Would that baker have a free speech right to resist providing such a cake?

If your answer is “no, of course not” remember that free speech principles must generally be neutral among viewpoints. If the state can compel an anti-Semite or racist to provide speech with which he disagrees, can it also compel an egalitarian to participate in the expression of racist, anti-Semitic, or otherwise offensive messages? The cases finding a right against compelled speech generally only require that the individual disagree with the speech the state seeks to compel.

Suppose a baker were asked to provide a cake decorated to say “Salvation comes only through Christ.” If the baker is not a Christian or is not the sort of Christian who believes that statement, and if the baker regards producing articulate statements from others as partly her own speech, should she be permitted to deny service? Would such a right extend to the owner of a printing franchise who objects to making photocopies of flyers bearing such messages?

Cases of this sort are harder than Masterpiece Cakeshop for two reasons. First, they more plausibly involve speech by the merchant or other service provider. Second, they are in principle limitable in a way that leaves public accommodations law robust in most other contexts. We can say that there is a right to resist providing products or services that articulate a specific objectionable message without fully opening Pandora’s box.

That is not to say that merchants and other service providers should necessarily win even when the application of anti-discrimination law would compel them to express articulable messages. ACLU national legal director David Cole, representing the same-sex couple before the Court in Masterpiece Cakeshop, made a powerful argument that all such cases should be judged under and survive the relatively loose standard applicable to content-neutral laws that happen to infringe speech mixed with conduct. Laws banning discrimination, Cole explained, do not target speech, and thus do not pose a serious risk of censorship.

Cole and the lawyer for the Colorado Civil Rights Commission also argued that even if the free speech of merchants and service providers is implicated in some cases, the government’s interest in combating discrimination is sufficiently powerful to overcome it. Indeed, even Solicitor General Noel Francisco, arguing for the Trump administration as amicus curiae on the side of the cakeshop, appeared willing to acknowledge that the government has a sufficiently powerful interest in combating race discrimination to justify overriding free speech rights. Yet when pressed by Justices Ginsburg and Sotomayor, he refused to acknowledge that there would be a sufficiently compelling interest in combating other forms of discrimination—such as discrimination based on religion, sex, or sexual orientation—to overcome a free speech objection.

However these and other issues might be resolved in a case that really does involve speech by a merchant or other service provider, they need not be resolved in Masterpiece Cakeshop—in which the baker objects to baking a custom wedding-style cake for a same-sex couple even if it includes no articulable message at all.

Religion is the Dog That Shouldn’t Bark in Masterpiece Cakeshop

Most of the briefing and oral argument in Masterpiece Cakeshop focused on the baker’s free speech claim, but he also claims that the application of the Colorado anti-discrimination law would violate his free exercise of religion. That claim will likely lose because of the rule announced in the 1990 Supreme Court case of Employment Division v. Smith.

In Smith the Court said that the First Amendment’s Free Exercise Clause is simply not implicated when a general law—i.e., one that does not single out religion or any particular religion—is applied in a way that imposes a burden on someone’s religious freedom. In the particular case, that meant that a Native American man had no free exercise right to use peyote as part of a religious ritual, because Oregon’s peyote prohibition was general; it applied to everyone, regardless of their reasons for wanting to use peyote. The Supreme Court majority said it did not even need to balance the state’s interest in forbidding drug use against Smith’s freedom of religion. Under the rule that now bears Smith’s name, the fact that the law did not target religion meant that the case was treated as presenting no religious freedom issue at all.

Congress did not like the rule of the Smith case and passed a law—the Religious Freedom Restoration Act or RFRA—purporting to change it. Under RFRA, if a law or government policy substantially burdens someone’s free exercise of religion, he or she is exempt from the law or policy unless the government can show that the law or policy is essential to advancing some truly compelling goal. RFRA has had powerful consequences. It was invoked by a majority of the Supreme Court in a 2014 case as the basis for the ruling that the religious conservative owners of the Hobby Lobby stores were entitled to an exemption from the contraception insurance mandate of the Obama administration’s regulations implementing the Affordable Care Act.

As written, RFRA also applies to state and local laws, but in a 1997 case the Supreme Court ruled that it could not be constitutionally applied to displace such laws. That doesn’t mean that all state and local laws and policies are judged by the Smith rule. Many states have state RFRAs or have state supreme courts that construe their state constitutions to require more or less what RFRA requires. However, Colorado does not. Thus, the rule of Smith, not RFRA, applies in the Masterpiece Cakeshop case. And that means that the baker probably loses the religion claim, because the Colorado anti-discrimination law does not single out religion. It forbids sexual orientation (and other forms of) discrimination in the provision of goods and services regardless of whether the person discriminating does so on religious or other grounds.

The Bogus Claim of Religious Discrimination

I say that the baker “probably” rather than “surely” loses his religion claim in Masterpiece Cakeshop because even under Smith, as explained in a 1993 Supreme Court case, a claimant can successfully object to a law that is facially neutral with respect to religion if he can prove that the law was adopted for the purpose of discriminating against religion or was applied in a discriminatory manner. Citing this caveat, the baker in Masterpiece Cakeshop argues that the Colorado law has not been applied evenhandedly.

The baker’s brief points out that the Colorado Civil Rights Commission has allowed bakers to deny service to a religious man who asked that they design cakes for him bearing anti-same-sex marriage messages. For instance, a baker who turned down a request for a Bible-shaped cake bearing the inscription “Homosexuality is a detestable sin. Leviticus 18:2” was found not to have violated Colorado’s anti-discrimination law. Voilà, the baker and his supporting amici say: religious discrimination.

The Colorado Court of Appeal rejected this argument, citing a lack of parallelism. The bakers who refused to bake the anti-gay cake did not do so because of the religious motivation for that anti-gay message but because they found it offensive. Presumably they would have refused to bake cakes decorated to say something like “There is no God but homosexuality is nonetheless detestably immoral.”

Now it can be argued and in fact has been argued in Masterpiece Cakeshop that the baker in this case likewise was not discriminating on the basis of sexual orientation. After all, he says (and there is no reason to doubt), he serves LGBT customers buying other kinds of baked goods, just not wedding cakes.

While this fact perhaps shows that the baker is not an anti-gay bigot, it does not show that his denial of a wedding-style cake to a same-sex couple even as he would provide the exact same cake to an opposite-sex couple is anything other than discrimination based on sexual orientation. The Colorado Court of Appeals correctly recognized that refusal to serve a same-sex couple based on opposition to same-sex marriage is sexual orientation discrimination in a way that refusal to write an offensive message based on its offensiveness is not religious discrimination just because the person requesting the offensive message happens to endorse its offensiveness based on his own religious beliefs.

In any event, there is a further reason why the analogy to the bakers who refused to provide cakes with expressly anti-gay messages misfires. The bakers who refused to inscribe anti-gay language on the cakes they were asked to bake were refusing to articulate a written message. As I explained above in connection with the free speech argument, Masterpiece Cakeshop asserts a right to refuse to sell a wedding-style cake to a same-sex couple even without any articulate message on the cake. Thus, while the Colorado Civil Rights Commission treated the religious customer’s complaint differently from the same-sex couple’s complaint, the difference in treatment can be fully justified by the fact that they are differently situated.

Extremely Thin Evidence of Subjective Bias

The Colorado anti-discrimination law does not apply to religious entities (like churches) or to “places primarily used for religious purposes.” Nonetheless, the brief of the baker and supporting amici allege religious discrimination by pointing to language used by one member of the Colorado Civil Rights Commission explaining why he thought Colorado should not go further so as to grant RFRA-style religious exceptions to other businesses. He said:

. . . religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust . . . . [W]e can list hundreds of situations where freedom of 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.

During the oral argument, Justice Kennedy pressed the lawyer for the Colorado Civil Rights Commission on whether this statement reflected the considered view of the commission. He appeared concerned that it reflected anti-religious bias that tainted the commission’s ruling against Masterpiece Cakeshop.

Yet Justice Kennedy’s concern was misguided for two reasons. First, the commissioner who made that statement was one of seven. Even if one assumes it did reflect anti-religious prejudice, under the Court’s precedents that does not automatically invalidate the commission’s actions. Instead, it triggers an inquiry into whether the commission would have made the same decision absent the one commissioner’s bias. At most, a concern about religious bias should result in a remand to the Colorado courts for fact finding on that question.

Second, even that limited step appears unwarranted. One can never truly know what motivates another human being, but the quoted language pretty plainly does not express an anti-religious bias. What it says is that grotesque injustices have been carried out in the name of religion—which is undeniably true. The commissioner was not saying that all or most religious people use their religious beliefs as the basis for committing atrocities; he was saying that the mere fact that someone has a religious motivation should not be a sufficient basis for assuming that what he is motivated to do is benign. Whatever one thinks of that point as an argument against adopting a RFRA-type approach to claims for religious exemptions, it is not an argument rooted in anti-religious bias.

Some day the Supreme Court may have to confront a genuine conflict between the right to be free from discrimination based on sexual orientation and the right to free speech or free exercise of religion. That day has not yet arrived.

  • G.N.M.

    Somehow I knew that you would come out against the bakers.

  • Brett

    At issue is forcing the baker to engage in an act that violates his freedom of religion. As Justice Kennedy remarked during argument, where is the tolerance for the baker’s religious freedom?

    • Brandon

      this is obviously a left wing website. It is a false comparison to equate the right to liberty from government interference to the “right” of equal treatment from other private individuals. In my opinion, the judges should tell “equality” to go to hell as far as private businesses are concerned. It should be really about the debate between liberty and authoritarianism.

  • Penny Savin

    Is anyone fooling God? We argue amongst each other, all sinners, but will God bless this man and this man in holy matrimony? Of course not, so the “marriage” is a mockery to Him.
    None of us are without sin and no sin is worse than another, but I would never take my transgressions to God’s altar and expect them to be blessed. I certainly wouldn’t also expect another person to be complicit.
    This should be a simple matter of two parties respecting each other as fallible human beings, not adding one more divisive cut to the fabric of our nation. Man can change his laws to read any way the prevailing wind suggests, but deeply-held conviction speaks to the very spirit of Religious Liberty.

  • Chemechie

    It seems to me that you chose a position and then created a convoluted argument to support it, while ignoring or downplaying arguments that conflict with it.
    As Brett says, where is any concern for the freedom of the Christian? Yet again cries of ‘discrimination’ are used to attack religion in what is clearly a concerted effort by the state, and this is clearly supported by statements of those making the judgement, proving the opposite of your point.
    Sexual orientation is a choice; it is not an immutable characteristic like skin color or sex so it should NOT be given the same special treatment.

  • Stinjjiole Kermudjin

    By your logic, if a baker can be compelled by law to bake a cake for a gay wedding then a sign painter can be compelled by law to paint a swastika for a nazi parade.

    Suppose a Neo-nazi asked a custom car shop to paint swastikas on his ride. Would the shop have the right to refuse?

    The issue is freedom of creative expression, not just speech. Baking a specific cake is creative expression as much as painting a sign and in both cases the creative professionals have a right not to create a message they disagree with.

  • Chuck

    The Court has a way out while ruling in favor of the baker…a very good read that relates to facts that Professor Dorf doesn’t touch on.

    http://thefederalist.com/2017/12/08/supreme-court-likely-rule-jack-phillips-dodging-big-religious-liberty-question/#disqus_thread

  • Dennis Gregory

    When the church starts giving marriage licenses rather than the state, there will be a stronger religious liberty issue. I do not dispute the baker’s deeply held religious beliefs, but this is, as Professor Dorf states, a speech issue, not a religious one.