At oral argument ii weeks agone inward Masterpiece Cakeshop, the Justices did non look to move taken with whatever of the unconvincing distinctions that the bakery’s counsel together with the U.S.A. of America Solicitor General were offering with honor to which refusals of service would, together with which would not, move constitutionally protected nether their compelled spoken language rationales, such as:
-- betwixt pre-made together with made-to-order custom cakes;
-- betwixt jewelers on the ane paw and, for some reason, make-up artists together with pilus stylists on the other;
-- betwixt cake-makers together with architects[1];
-- betwixt a chef designing a beautiful presentation for a couple’s anniversary celebration together with the baker’s piece of work inward this instance on a cake for a political party to celebrate a wedding; and
-- betwixt discrimination against same-sex couples or interreligious couples (constitutionally protected, according to the argument) together with discrimination against interracial couples (purportedly non protected).
To move sure, several of the Justices, together with Solicitor General Francisco, raised hypothetical cases inward which at that topographic point mightiness move greater sympathy for a businessperson’s correct to discriminate. Most of those hypos, however, described deportment that the Colorado world accommodations constabulary does non prohibit, together with others are non probable to final result inward many, if any, actual cases (such as Justice Alito’s illustration of a discriminatory refusal past times a fellowship that ghost-writes nuptials vows).[2] Still other of the hypotheticals (e.g., married-student housing at a religious college) would amend move viewed non as implicating compelled speech, but instead, as David Cole suggested at argument, as raising the interrogation whether the Court would, or might, arts and crafts additional exceptions to the full general free exercise doctrine of Employment Division v. Smith.
Most importantly, however, these hypothetical cases, no affair how sympathetic they mightiness move inward the eyes of some or all of the Justices, do non offering useful guidance regarding where the Court could pull whatever principled doctrinal lines on the compelled spoken language question. Thus, fifty-fifty alongside Justices who mightiness move specially sympathetic to Masterpiece together with its owner, Jack Phillips, at that topographic point did non look to move much enthusiasm for breaking whatever pregnant doctrinal set down on compelled speech.
Such difficulties were hardly unforeseeable or unanticipated. The oral declaration thus renewed the mystery of why the Court granted certiorari inward the start place--especially after it had denied the petition inward Elane Photography, LLC v. Willock four Terms ago, when Justice Scalia was silent on the Supreme Court. Elane Photography raised virtually the same compelled-speech claim as the ane at number inward Masterpiece Cakeshop. Indeed, if anything, the free-speech claim inward Elane ought to have got been the stronger ane of the ii cases, because it involved artisans—photographers Elaine together with Jonathan Huguenin—who were required to perform their services at a same-sex nuptials itself, together with whose project presumably included using their inventiveness to position the same-sex yoke inward the best possible light. (I don’t hateful to advise that I retrieve the Free Speech Clause requires an exemption inward either case—I don’t. I hateful only to dot out that inward Masterpiece there’s fifty-fifty less possibility that anyone would misattribute whatever views to the business, together with that Masterpiece’s services do non require the bakery to feign acceptance/celebration of the couple, something mightiness at to the lowest degree arguably move truthful inward a instance such as Elane.)
It thus came as something of a surprise, 3 years later, when the Court requested the tape in Masterpiece from the province court, position off conclusion for to a greater extent than than a dozen farther conferences after receiving the record, together with eventually granted cert. Was at that topographic point perhaps something inward the tape of the Masterpiece case that distinguished it from Elane in a way that troubled ane or to a greater extent than Justices—something that mightiness have got been the dependent patch of discussions alongside the Justices inward the 5 months of conferences they had on the instance after they received the tape from the Colorado province court?
It thus came as something of a surprise, 3 years later, when the Court requested the tape in Masterpiece from the province court, position off conclusion for to a greater extent than than a dozen farther conferences after receiving the record, together with eventually granted cert. Was at that topographic point perhaps something inward the tape of the Masterpiece case that distinguished it from Elane in a way that troubled ane or to a greater extent than Justices—something that mightiness have got been the dependent patch of discussions alongside the Justices inward the 5 months of conferences they had on the instance after they received the tape from the Colorado province court?
I speculated that the sticking dot mightiness have got been the nature of the disclaimers that province constabulary allowed the businesses to display inward the ii cases—some ambiguity virtually whether Colorado would allow Masterpiece to post, inward its store or on its website, the sort of signage that the New United Mexican States Supreme Court, inward Elane Photography, held that the vendor at that topographic point could display without violating province law: “a disclaimer on their website or inward their studio advertising that they oppose same-sex spousal human relationship but that they comply with applicable antidiscrimination laws.” (As I explicate inward a footnote, however, the ii States in all probability do non vary from ane some other inward this respect.[3])
The recent oral declaration inward Masterpiece, however, revealed that at that topographic point was something real dissimilar inward the tape that was sticking inward the craw of at to the lowest degree some Justices—namely, the possibility that ane or to a greater extent than of the 7 Commissioners on the Colorado Civil Rights Commission mightiness have got been biased against religious objectors to Colorado's world accommodations law. As Justice Kennedy remarked (at pages 51-52 of the transcript), although all the counsel together with most of the Justices were focused on the compelled spoken language question, he was concerned virtually a possible violation of the Free Exercise Clause, because of the possibility that “at to the lowest degree ane fellow member of the [Colorado Civil Rights] Commission” based his or her conclusion “in pregnant move . . . on the grounds . . . of hostility to religion.” In particular, Justice Kennedy together with Justice Gorsuch identified ii quotations from Commission proceedings that, they suggested, mightiness reverberate such hostility.
Below the "fold," I examine to a greater extent than closely the prove of possible “religious hostility” that Justices Kennedy together with Gorsuch raised. For reasons I'll explain, the ii examples of possible animus they identified do non demonstrate a Free Exercise violation past times the Colorado Civil Rights Commission. Nor, opposite to Justice Alito's suggestion, was the Commission's handling of other claims against bakeries prove of impermissible religious or viewpoint discrimination past times the agency.
If that's what the Court decides to do, Masterpiece will have got turned out to move a real minor, deeply fact-intensive case, without much, if any, precedential impact. Such a final result mightiness good move for the best, for at to the lowest degree ii reasons. First, as the oral declaration demonstrated, it would move hard for the Court to arts and crafts a principled together with sufficiently cabined compelled-speech correct that would non threaten to severely undermine antidiscrimination laws. Moreover, the notoriety of these "compelled spoken language through services" cases has, inward my view, far exceeded the practical significance of the constitutional question: I believe at that topographic point volition move many fewer of these claims-for-exemption inward the adjacent few years than many people assume—and that thus at that topographic point is no swell urgency for the Court to act. (Indeed, I’d wager that x or xx years from now, these cases volition move virtually nonexistent.)
Even so, I retrieve the "religious hostility" theory of the instance for Masterpiece is weaker than some Justices mightiness have got assumed.
* * * *
Justice Kennedy asked whether the province courtroom judgment could stand upward if “at to the lowest degree ane fellow member of the [Colorado Civil Rights] Commission” based his or her conclusion “in pregnant move . . . on the grounds . . . of hostility to religion.” He farther suggested that perhaps at that topographic point was prove of such hostility inward the record: “It seems to me that the province . . . has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
What was the set down for Justice Kennedy’s concern? He together with Justice Gorsuch identified ii quotations from Commission proceedings that, they suggested, mightiness reverberate possible hostility:
1. Commissioner Jairim’s remarks
According to Justice Gorsuch (p.55), ane Commissioner said that “if someone has an number with the laws impacting his personal belief system, he has to facial expression at compromising that belief system.” I believe Justice Gorsuch was referring to a comment made past times erstwhile Commissioner and Vice-Chair Raju Jairim at the Commission hearing on May 30, 2014, inward which the Commission was reviewing the summary judgment (see Pet. App. 61a) that an Administrative Law Judge had granted. (The passage inward interrogation was non included inward whatever of the briefs at the cert. stage or on the merits—the Justices presumably discovered it inward the tape they received from the province court.)
Former Commissioner Jairim, however, did non advise that Phillips needed to “compromise his belief system”—not fifty-fifty close. Here’s what Commissioner Jairim said, with reference to a concurring sentiment inward the New United Mexican States Supreme Court’s Elane Photography decision:
Former Commissioner Jairim, however, did non advise that Phillips needed to “compromise his belief system”—not fifty-fifty close. Here’s what Commissioner Jairim said, with reference to a concurring sentiment inward the New United Mexican States Supreme Court’s Elane Photography decision:
I believe . . . it was best said past times the judges inward the New United Mexican States case, where the laws are hither just to protect individuals from humiliation together with dignitary harm. . . . [W]e do non desire people to experience undignified when they walk into whatever house of draw organisation together with do draw organisation that, y'all know, serves the public. . . . I’m referring to the comments made past times Justice [Bosson] inward that case. And essentially he was maxim that if a adult man of affairs wants to do draw organisation inward the province together with he’s got an number with the -- the law’s impacting his personal belief system, he needs to facial expression at beingness able to compromise. And I retrieve it was real good said past times that judge.
And hither is the passage to which Commissioner Jairim was referring, from Judge Bosson’s concurrence inward Elane Photography concerning the demand to “compromise”:
On a larger scale, this instance provokes reflection on what this nation is all about, its hope of fairness, liberty, equality of opportunity, together with justice. At its heart, this instance teaches that at some dot inward our lives all of us must compromise, if only a little, to adjust the contrasting values of others. A multicultural, pluralistic society, ane of our nation’s strengths, demands no less. The Huguenins are complimentary to think, to say, to believe, as they wish; they may pray to the God of their alternative together with follow those commandments inward their personal lives wherever they lead. The Constitution protects the Huguenins inward that honor together with much more. But at that topographic point is a price, ane that nosotros all have got to pay somewhere inward our civic life.
In the smaller, to a greater extent than focused Blue Planet of the marketplace, of commerce, of world accommodation, the Huguenins have got to channel their conduct, non their beliefs, so as to larn out infinite for other Americans who believe something different. That compromise is move of the gum that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That feel of honor nosotros owe others, whether or non nosotros believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the remainder of the world. In short, I would say to the Huguenins, with the utmost respect: it is the toll of citizenship. I thus concur.
Justice Bosson wrote those words inward August 2013, almost ii years before Justice Kennedy’s sentiment for the Court inward Obergefell. Far from demonstrating hostility to religion, I retrieve whatever fair reader would concur that Justice Bosson’s sentiment comes virtually as unopen to capturing the substance lessons of Justice Kennedy’s opinion—including his remarks virtually respecting the rights of religious believers to decease on to adhere to together with advocate for their beliefs—as ane could mayhap hope for.
Likewise, erstwhile Colorado Commissioner Jairim, who expressly embraced, together with was trying to summarize, Justice Bosson’s remarks, was likewise simply describing the “compromises” in commercial deportment that are necessary when members of the community grip such irreconcilable views virtually questions involving spousal human relationship together with sexuality—views that they may decease on to hold, to instruct together with to advocate, fifty-fifty spell they are required to care for customers equally. Contrary to Justice Gorsuch’s suggestion, then, Commissioner Jairim did non advise that vendors such as Jack Phillips must compromise their belief systems. To the contrary—he (and Judge Bosson) said almost precisely the opposite.
2. Former Commissioner Rice’s remarks
Also on May 30, 2014, next its coming together on the Masterpiece case, the Civil Rights Commission adopted inward total the ALJ’s decision, together with affirmed his summary judgment against Masterpiece (see Pet. App. 56a). That judgment concluded that Masterpiece had violated the Colorado world accommodations law, together with that the application of that constabulary to Masterpiece did non violate the First Amendment. In add-on to affirming the ALJ’s injunction requiring Masterpiece to sell to same-sex couples the same products it sells to heterosexual couples, the Commission added some remedial requirements, as the ALJ had contemplated: It required Masterpiece to prepare its employees on the requirements of the Colorado law, together with to render quarterly reports on compliance to the Commission for ii years.
Masterpiece so made a motility to the Commission to remain its monastic tell pending Masterpiece’s appeal to the Colorado Court of Appeals. On July 25, 2014, the Commission held some other hearing, this ane to consider Masterpiece’s remain motion. It was at that coming together that the minute Commissioner’s comment inward interrogation was made. Just before the Commission voted unanimously to deny the remain (see Pet. App. 294a), erstwhile Commissioner Diane Rice remarked:
Freedom of faith together with faith has been used to justify all kinds of discrimination throughout history, whether it move slavery, whether it move the holocaust, whether it be—I mean, nosotros . . . tin listing hundreds of situations where liberty of faith has been used to justify discrimination. And to me it is ane of the most despicable pieces of rhetoric that people tin use—. . . to work their faith to wound others. So that’s just my personal dot of view.
[CORRECTION: Like Justice Kennedy, I had read the transcript to bespeak that this declaration was past times Commissioner Heidi Heiss. Respondent's counsel has informed the Court, however, that the declaration was made past times erstwhile Commissioner Rice.] Justice Kennedy, at least, appeared to retrieve that this declaration demonstrated “hostility to religion.” I’m non sure whether that’s the best reading of Commissioner Rice’s statement. As Mike Dorf notes, what the Commissioner was principally trying to bring was the unremarkable fact that, “throughout history,” grotesque injustices have got been carried out inward the scream of religion, together with that, inward her “personal” view, it is “despicable” to so invoke faith as a justification for harming others.
Commissioner Rice did non specifically say that Masterpiece, or Phillips, had acted “despicably.” Even so, perhaps Justice Kennedy was correct to retrieve that the quotation at a minimum raised the question of whether Commissioner Rice idea it was “despicable” for Phillips to invoke faith to deny services to same-sex couples.
So, for the sake of argument, let’s assume that Commissioner Rice did retrieve that it was "despicable" for Phillips to invoke religion, together with that she idea so non only when she considered the motility to remain inward July 2014, but likewise 8 weeks earlier, when the Commission inward May 2014 considered whether to affirm the ALJ’s judgment. Let’s farther assume that such a perspective would demonstrate the sort of “governmental hostility” to religion that tin trigger Free Exercise Clause scrutiny under Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.A. of America 520, 534 (1993). (I should note, however, that this supposition is a stretch. Rice's unmarried remark, fifty-fifty viewed inward its worst light, pales inward comparing to the prove of sect-based animus at number in Lukumi, without which the City Council at that topographic point would never have got enacted an ordinance criminalizing a primal exercise of the Santerians' religion.)
Even if nosotros have got these assumptions, at that topographic point is no argue to retrieve that Rice's perspective on Phillips’s religious justification for his actions played fifty-fifty the slightest move inward the Commission’s conclusion to summarily affirm the ALJ's decision. Surely, the Commission would have got treated a bakery who discriminated against gay men on nonreligious grounds precisely the same as it treated Phillips. There would have got been no set down inward the constabulary for whatever other conclusion, together with it’s hard to regard how anything in the Commission’s judgment mightiness have got been, or could have been, dissimilar if Phillips had non invoked his religion. That is to say: The ALJ together with the Commission establish that Phillips was dependent patch to, together with had violated, the Colorado antidiscrimination constabulary despite, non because of, his religious views.
Moreover, the Commission’s decision—affirming the ALJ judgment that Masterpiece violated the Colorado statute together with that it was non entitled to do so past times the First Amendment—was reviewed de novo past times the Colorado Court of Appeals (see Pet. App. 13a), together with that courtroom independently affirmed the Commission’s conclusions. The Court of Appeals’ opinion, similar the ALJ’s, was based virtually solely on legal analysis; it did non depend on whatever disputes virtually the underlying facts of the case. (And there’s no proposition that whatever of the 3 judges on that court—or that whatever of the judges on the Colorado Supreme Court, which summarily affirmed the Court of Appeals—was hostile to religion.)
Therefore, fifty-fifty if Commissioner Rice was impermissibly motivated past times “hostility” to Phillips’s religion, that should non enhance whatever interrogation nether Lukumi, because regardless of what whatever Commissioner’s views mightiness have got been, the province of Colorado did non discriminate against Phillips on the set down of faith inward implementing its antidiscrimination law. And without such discrimination--because faith manifestly played no move inward the application of the constabulary to Masterpiece--Commissioner Rice's views virtually Phillips's religion, no affair how disrespectful they mightiness have got sounded, could non mayhap have got had whatever number on Phillips's religious exercise.
* * * *
At oral argument, Justice Alito interjected to say that, inward add-on to the contested Commissioner statements, at that topographic point “appears to move a exercise of discriminatory handling based on viewpoint” past times Colorado civil rights officials. Justice Alito was referring to complaints filed past times William Jack, who had asked 3 Denver-area bakeries to sell him cakes inward the shape of bibles, featuring images of ii groomsmen asset hands with a blood-red “X” over them, accompanied past times biblical verses condemning homosexuality as sinful (one of which referred to it as a “detestable sin”). All 3 bakeries were willing to sell Mr. Jack bible-shaped cakes, but refused to include the iconography together with verses characterizing homosexuality as sinful together with detestable. (At to the lowest degree ane of the bakeries offered to render Mr. Jack icing together with a pastry handbag so he could himself write or pull whatever messages he wished on the cakes.)
Mr. Jack filed complaints with the Colorado Civil Rights Division, alleging that the bakeries had discriminated against him on the set down of his Christianity. The Division investigated each of Mr. Jack’s allegations together with determined that at that topographic point was no prove that whatever of the 3 bakeries discriminated against him because of his religion. To move sure, Jack was motivated past times religious beliefs, together with the cakes he wanted would have got been inscribed with verses from scripture. The bakeries did non decline to create the cakes because of Mr. Jack’s beliefs, however, or because of his religious identity: They would have got denied such requests to any customers, regardless of their faith or “creed,” because the bakeries categorically refused to include whatever such “derogatory linguistic communication together with imagery” on their cakes. They were for certain non discriminating against customers on the set down of their religion, or the fact that their views were based inward their agreement of Christianity. (Indeed, as the Colorado Court of Appeals noted, all 3 bakeries "regularly created cakes with Christian themes.") The William Jack cases thus do non demonstrate whatever religious discrimination past times Colorado civil rights officials.
At oral argument, Justice Alito suggested that Colorado’s comparative handling of the William Jack together with Jack Phillips cases reflected a shape of viewpoint discrimination (presumably inward violation of the Free Speech Clause). In his words: “It’s okay for a bakery who supports same-sex spousal human relationship to spend upward to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned together with y'all have got the bakery who opposes same-sex marriage, that bakery may move compelled to create a cake that expresses blessing of same-sex marriage.”
This reflects a fundamental misunderstanding of Colorado’s world accommodations constabulary (and that of most other states). As the William Jack instance demonstrates, a vendor tin spend upward to inscribe on his products whatever detail message, without violating Colorado law. Thus, just as whatever vendor could categorically refuse to sell whatever products that disparage gays, or same-sex spousal human relationship (as occurred inward the William Jack cases), Jack Phillips together with Masterpiece could categorically refuse to sell—to anyone—cakes bearing detail messages inward back upward of LGBT rights, such as “All Marriages are Equal,” or “We Support LGBT Weddings,” inward the same way he (lawfully) refuses to brand baked goods with Halloween themes. Colorado treats all of these refusals to inscribe detail messages equally: It permits vendors to categorically decline to sell such inscribed products; but, as with all products, it prohibits vendors from selectively selling such products to detail customers (or for detail users), together with refusing such sales to others, on the set down of a protected feature of the customers/users, such as race, religion, or sexual orientation.
[1] Justice Alito offered Masterpiece’s lawyer the (friendly) analogy to an architect. He so appeared to move surprised, if non incredulous, when counsel insisted that the Free Speech Clause would not protect the architect.
[2] For example, Solicitor General Francisco asked whether an opera vocalist who had performed at the National Cathedral would have got to likewise perform at the Westboro Baptist Church. Depending on why the vocalist would decline to perform at Westboro, such conclusion mightiness non move on the set down of whatever set down prohibited past times the Colorado constabulary (e.g., if it were based on the clients’ viewpoints rather than on their religions). In whatever event, an opera vocalist who makes highly discretionary decisions virtually where to perform is almost for certain non a “public accommodation” covered past times the law.
Similarly, Chief Justice Roberts wondered whether a Catholic Legal Services scheme that provides pro bono legal representation for matters such as wills together with contract disputes would move required to render such services to a same-sex couple, where the organization’s religious tenets prohibit such marriages. It is non obvious that such a legal services performance would move covered past times the law—like most constabulary firms, it presumably would move highly selective inward choosing its clients. The Chief Justice thus amended his hypothetical to posit that the scheme has “taken every other client to date.” It’s hard to imagine at that topographic point be such legal services organizations, inward the actual economy, who are by together with large indifferent to the clients they represent. If at that topographic point were such an organiaation, however, it presumably would move covered past times the Colorado law—in which case, as David Cole suggested, it would move required to render the same-sex yoke with the run-of-the-mill legal services offered to everyone else, unless together with until the Court carves out some other Free Exercise exception to Employment Division v. Smith. (The Chief Justice understandably appeared to move to a greater extent than concerned virtually the comport on on the organization’s faith rather than whatever alleged spoken language compulsion.)
Justice Alito wondered virtually a bakery that would sell a cake with the inscription “November 9: The Best Day inward History” to a yoke celebrating their anniversary, but that would spend upward to sell a cake with the same inscription to someone planning a “party to celebrate Kristallnacht.” Thankfully, at that topographic point volition non move whatever such absurd cases; but if at that topographic point were, that refusal would non inward whatever way violate Colorado constabulary because the bakery would non move discriminating on the set down of a protected feature of the customer.
[3] New Mexico’s permitted disclaimer—including that the vendor “oppose[s] same-sex marriage”—facilitates a dot the Court later on made inward Obergefell, namely, that fifty-fifty though same-sex spousal human relationship is at nowadays constitutionally protected, “those who adhere to religious doctrines may continue to advocate with utmost, sincere conviction that, past times divine precepts, same-sex spousal human relationship should non move condoned.” In Masterpiece, the Colorado Court of Appeals did non become quite that far: It simply stated that Masterpiece could post a disclaimer maxim “that the provision of its services does non constitute an endorsement or blessing of deportment protected past times [Colorado’s antidiscrimination statute]” together with that that constabulary “requires it non to discriminate on the set down of sexual orientation together with other protected characteristics.” One mightiness thus wonder whether Colorado constabulary would permit the bakery to post a sign such as the ane that would move permissible inward New Mexico, stating expressly that its proprietors “oppose same-sex marriage.”
On my reading of the relevant Colorado statute, it genuinely would permit Masterpiece to post such a message. The statute provides that “[i]t is a discriminatory exercise together with unlawful for a person, direct or indirectly, to . . . display, post, or ship service whatever written, electronic, or printed communication, notice, or promotion that indicates . . . that an individual's patronage or presence at a house of world accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
As I empathize it, this constabulary would allow Masterpiece to post a disclaimer along the next lines:
“We oppose same-sex spousal human relationship because nosotros consider it to violate God’s law. Nevertheless, nosotros comply with all applicable antidiscrimination laws together with nosotros welcome everyone’s patronage, regardless of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Indeed, such a disclaimer would move consistent with what everyone inward the Denver surface area already understands virtually Masterpiece together with its owner, Jack Phillips—that although they do non consider whatever customers’ patronage to move unwelcome, objectionable, unacceptable, or undesirable because of their sexual orientation (in fact, they strongly insist that they welcome such patronage), they do oppose same-sex spousal human relationship together with thus would non brand cakes for celebrations of such marriages were it non for the province constabulary requiring them to do so.
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