One of the most momentous Supreme Court decisions in history, Bush v. Gore, 531 U.S. 98 (2000), famously limited itself to “the present circumstances” only, essentially declaring — but not explicitly stating — that the case was to have no precedential value to future decisions, lest it be read too broadly and its tenuous equal-protection analysis be applied to situations other than handing the presidency to the preferred candidate of the Court’s majority.
On December 5, the Court will hear oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, wherein a baker refused to provide a custom cake for a same-sex couple’s wedding reception and was sued under Colorado’s civil-rights law proscribing commercial discrimination on the basis of sexual orientation. The baker has argued, inter alia, that being “forced” to produce a custom wedding-cake and thereby “participate” in a same-sex wedding, would violate his “sincerely-held religious beliefs” and is therefore forbidden by the First Amendment.
For obvious reasons, and not without justification, a lot of people are afraid that the baker will win, and the Court will open the floodgates to all manner of discrimination in the commercial marketplace, not just against gay people but everyone else as well, effectively nullifying anti-discrimination statutes nationwide by giving everyone affected a complete affirmative defense to any lawsuit or administrative action arising thereunder. All you have to say is, “Complying with the law would have violated my sincerely-held religious beliefs,” and that’s it; you win a dismissal.
Obviously, the Court is not going to do that. If it does, every lawyer in America worth his salt who has a civil case pending will rush to court the next day and make a motion to amend his answer to add the foregoing affirmative defense, and a motion to dismiss on that ground. No one could ever be successfully sued* if anyone can get a dismissal by simply making the unverifiable, unfalsifiable, unchallengeable declaration that “complying with the law, or acting lawfully, would have violated my sincerely-held religious beliefs.”
[* — Contract actions would probably survive a ruling like this, as they involve voluntarily-assumed duties as opposed to those required by law. Tort actions, however, could cease to exist.]
So, how does Cake Jesus win this case without letting every civil defendant in America off the hook, and destroying civil litigation as we now know it? I haven’t read the briefs yet so I’m just going to play devil’s [no pun intended] advocate here, and see if I can come up on my own with a way for Cake Jesus to win, viz., a rational basis and a principled distinction for a narrow, carved-out exception to Employment Division v. Smith, 494 U.S. 872 (1990), that will allow the Court to rule in his favor without overturning Smith or completely upsetting the apple cart. If I were Cake Jesus’s lawyer, how would I argue this? How will that argument be received?
First, I would look for the Court to provide a limiting instruction like it did in Bush v. Gore, applying the result only to “the present circumstances,” viz., these parties and this case, not the Colorado statute at issue and not anti-discrimination laws generally. The Court is not about to strike down all anti-discrimination statutes and ordinances on the grounds that protecting LGBT persons (or enumerating sexual orientation and gender identity as protected characteristics) violates the First Amendment’s Free Exercise clause.
Let’s explore that for a second before we move on. If this were a facial challenge to the Colorado law, the foregoing would have to be the argument if the law itself were to be held unconstitutional. Meaning, the state cannot protect LGBT persons (as distinct from any other protected class) from commercial discrimination (lay aside for the moment employment, housing and other discrimination) at all, without infringing on the right to the free exercise of religion. Even with this Court, it’s almost impossible to imagine its reaching such an absurd result. It’s close to unfathomable that the Constitution could prohibit a state from protecting a particular named class or characteristic in its equal-protection legislation.
The only option, then, is an “as-applied” challenge, meaning this particular application of the anti-discrimination law infringes on Cake Jesus’ constitutional rights in this scenario only.
It bears repeating that the infamous Hobby Lobby decision doesn’t help Cake Jesus here, for any number of reasons, not the least of which being that that case was decided under RFRA, a federal statute, which does not apply to the states, not the Constitution, the First Amendment or the Free Exercise Clause, which do. It also didn’t involve an anti-discrimination law, or any other legislative act, nor a private discrimination lawsuit; the challenge was to the enforcement by a federal agency of an administrative regulation. In addition, even though it was wrongly decided for different reasons, the Hobby Lobby case went the way it did largely because the government could accommodate the employer’s purported “religious” “beliefs” while still guaranteeing that employees would receive the coverage to which they were legally entitled. Meaning, the challenged regulation was not the “least restrictive means” of accomplishing the government’s legitimate goal of guaranteeing birth-control coverage for female employees under the Affordable Care Act.
Even if RFRA did apply (or if the Court overturns Smith and applies the RFRA standard to all free-exercise cases), it would be difficult to imagine a less-restrictive means of accomplishing the government’s undeniably-compelling interest in guaranteeing fair and equal access to the commercial marketplace, than giving consumers the option to sue merchants (in court, or in an administrative proceeding) for discrimination.
OK. Let’s look at the precedent set in Employment Division v. Smith, 494 U.S. 872 (1990), in a majority opinion penned by the late Reverend Justice Antonin Scalia, with the facts of that case updated to the context at hand:
[Respondents] contend that their religious motivation for [denial of goods and/or services] places them beyond the reach of a [civil] law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who [discriminate] for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).
…
We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):
“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”
(Footnote omitted.) We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Id. at 166-167.
Subsequent decisions have consistently 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).
…
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.
Id. at 878-880 (some citations omitted). Not a whole lot of ambiguity there.
So how does the Court get from there to the conclusion that Cake Jesus’ “religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” viz., discrimination in the commercial marketplace?
There actually is precedent, other than Bush v. Gore, for the Court to carve out discrete, ad hoc exceptions to general constitutional principles in special situations; it was the subject of my Law Review Note. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court held that public school students have a protected right to free expression under the First Amendment, and school officials (teachers, principals, &c.) cannot infringe upon this right without showing a reasonable forecast of a substantial, material disruption to the educational process. See id. at 506, 514. Since then, the Court has carved out exceptions to this principle for speech that is “plainly offensive” (Bethel School District No. 43 v. Fraser, 478 U.S. 675 (1986)), for “school-sponsored” speech such as school newspapers or anything else with the school’s imprimatur on it (Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)), and most recently, speech that advocates the use of illegal drugs which schools are legally required to oppose (Morse v. Frederick, 551 U.S. 393 (2007) (the “BONG HiTS 4 JESUS” case)).
Without getting into the weeds on that issue or those cases, the point is that the Court can make, and has made, an exception to a general rule in a narrow, discrete, ad hoc situation. The commercial-discrimination context is obviously very different from the shenanigans of public schoolchildren, not the least of which being that we’re talking about purely private activity that is regulated by law, where private actors (consumers) are given the option to enforce their legal rights (not constitutional rights) against other private actors (merchants). In addition, the exceptions in the foregoing cases were made in favor of the governmental actor, i.e., the enforcement of school rules and discipline, rather than enhancing the “free speech” rights of the children.
Nevertheless, the Court is going to have to make the kind of discrete subject-matter exception to Smith that it made to Tinker in the “BONG HiTS” case if it wants to let Cake Jesus off the hook for violating Colorado’s anti-discrimination statute. What could be the basis for such an exception?
The “Artiste” Exception
Much has been made of the fact that Cake Jesus claims to be not just an ordinary merchant; he’s not the Entenmann’s display case at the end of the aisle, he’s an “artiste” whose cakes are his way of expressing himself, and he shouldn’t be “forced” to “express” approval of, let alone joy, happiness, congratulation, or even indifference to, the wedding of two men or two women.
I and others have been over this “forced expression” fallacy in the past, and the Court essentially rejected it in Smith, 494 U.S. at 881-82, so Cake Jesus will have to overcome that as well. The point here is whether or not there is a principled distinction between a cake “artiste” and a regular bakery that sells pre-made cakes off the shelf. My position on this has always been that if you are in the business of making custom cakes (or flower arrangements, or photography, or any other business activity that has an “expressive” element), announce to the world that you’re in that business, and invite the public to come in and order custom products from you, you must do so lawfully. Or, you can choose not to incorporate, not take advantage of the commercial infrastructure and tax advantages the state provides to incorporated businesses, and take your chances as an unincorporated independent contractor. No one “forced” you to go into that business or to offer your custom-made “expressive” goods and services to the buying public.
But let’s assume for the moment that this “artiste” distinction is important, and that Cake Jesus is indeed an “artiste.” Should “artistes” be exempt from anti-discrimination laws that affect ordinary retail merchants? The issue here is not really “forced expression,” in that Cake Jesus is not really objecting to the thing he’s supposedly being “forced” to “express,” but for whom he’s supposedly being “forced” to “express” it.* Courts have repeatedly rejected this fallacious attempt to pretend that the objector is objecting to the activity (or the “expression”) and not the protected characteristic of the customer, which may not be the basis of discrimination under these kinds of laws. A merchant can refuse service to a particular customer for any number of perfectly valid, legitimate, lawful reasons; “My special magic book of Bronze Age fairy tales says You People Are Icky,” is not one of them. “No shirt, no shoes, no service” is perfectly fine; “No colored, no Jews, no queers” is, rightly, against the law.
[* — Cake Jesus was not, for example, asked to create a cake depicting gay sex acts or bearing an inscription describing same. Were that the case, he might have a viable argument, viz., he would not make such a cake for anyone.]
Let’s take as an analogy a plumber and custom bathroom designer who refuses to design and install a ceramic-tiled shower for a black family, because he has a “religious” objection to n***er-bathing and should not be “forced” to “express” “approval” thereof. Is there a principled distinction between Shower Jesus and Cake Jesus? Is Shower Jesus an “artiste” like Cake Jesus?
Let’s assume arguendo that he is; does that excuse him from liability for discrimination on the basis of race? If not, apart from the question of why Cake Jesus is an “artiste” but Shower Jesus is not, would Shower Jesus nonetheless be excused from liability if he refused to design and install a shower for a gay couple and their family, viz., if his “religious” objection was based on sexual orientation instead of race? Is it OK for shower Jesus to object to the bathing if it’s a black family, and to the gay if it’s a gay couple, and be let off the hook either way?
I have been trying really, really hard to come up with a principled distinction by which Cake Jesus could avoid being “forced” to “express” “approval” of a gay wedding while Shower Jesus would be liable for refusing to “express” “approval” of n***er-bathing, and I can’t. To one degree or another, all human activity is expressive, meaning all commercial activity is expressive as well, or at least has an expressive element. If you’re a commercial “artiste," selling your “art” to buying public, that’s a business. And it’s the business that’s subject to anti-discrimination laws, not the “art.”
If the Court makes an “artiste” exception in this case, and holds that commercial “artistes” like bakers, florists and photographers are exempt from anti-discrimination laws if they have a “religious” objection to the subject matter of the expressive product they are asked to create, it will have to draw some fairly bright lines around what constitutes an “artiste” and what doesn’t, viz., to include Cake Jesus but exclude Shower Jesus. Or the Court could just arbitrarily create a category without any organizing principle, that includes wedding vendors but excludes everyone else.
It will also have to draw bright lines around, or create an arbitrary category of, the sort of things a commercial “artiste” may legitimately object to in order to be excused from anti-discrimination laws, and then decide if the excuse pertains only to discrimination on the basis of sexual orientation and not race, gender, nationality or religion; again, to include Cake Jesus but exclude Shower Jesus, or more precisely, to include gay weddings and exclude n***er-bathing (or, for that matter, n***er weddings).
Here’s where it gets tricky. The only way the Court can do this and make it workable, is if it reaches the questions of whether a “religious” “belief” is “sincerely-held,” and more importantly, whether the “belief” is legitimately “religious” in nature or is based on some other underlying doctrine, principle, intention or motivation. The court would have to decide, for example, that opposition to same-sex marriage is a legitimate (and legitimately) religious belief, whereas opposition to n***er-bathing is not. Or that the former is more legitimate, more religious, more important and therefore more worthy of an exception, than the latter. Whether the Court can do that is less important than whether we want the Court, and courts in general, to start doing that. I’m pretty sure it can’t, and I’m pretty sure we don’t.
The “Forced Participation” Exception
Like “forced expression,” many of us have debunked the idea that a baker, florist or photographer “participates” in a same-sex wedding (or, for that matter, any other wedding); the only people who “participate” in a wedding are the couple getting married, the officiant, the wedding party, and one could argue, invited guests. Everyone else is engaged in either employment, or a business transaction.
But let’s stipulate that designing and producing a cake, floral arrangement, photographs or video for a wedding is “participation” therein. Again, they key to this exception is finding a principled distinction to justify letting Cake Jesus off the hook, but not Shower Jesus. Shower Jesus doesn’t want to “participate” in n***er-bathing any more or less than Shower Jesus wants to “participate” in gay weddings. Even if there were a distinction between designing and baking a custom wedding cake, and designing and installing a custom shower, such that the former is “participation” in a wedding and the latter is not “participation” in bathing, the question remains whether Cake Jesus could refuse to design and bake for a n***er wedding instead of a gay wedding, and why he could avoid liability for the latter but not the former.
I think much of the foregoing analysis under the “artiste” exception applies to the “forced participation” exception as well, so there’s no need to go back over it again.
The “Just Go Somewhere Else” Exception
One of the most common arguments in favor of exempting “religious” merchants from anti-discrimination laws is that, in essence, “The gays can just go somewhere else” to get the wedding goods and services they need. I’ve also been told that the gays should just be “tolerant” and respectful of these merchants’ “beliefs,” i.e., “allow [themselves] to be discriminated against” and either go to another vendor for the goods or services they need or just do without.
As a matter of public policy, “just go somewhere else” (or “be tolerant and allow yourself to be discriminated against”) is not a realistic option. As noted above, the Hobby Lobby decision went the way it did in large part because HHS could still guarantee that the employees got the coverage they were entitled to, without “burdening” the employer’s purported “religious” “beliefs.” In the commercial context, the state can’t guarantee that comparable goods and services will be readily available at a comparable price, let alone that the vendors thereof will not also have “religious” objections to the subject matter, i.e., the customer’s protected characteristic. Indeed, the only way the state can guarantee that is to make discrimination unlawful, and give consumers the option to enforce their legal right to fair and equal access to the commercial marketplace.
Ironically, however, this might be the best tack for me to take as Cake Jesus’s lawyer, to justify the narrow exemption I’m asking the Court to recognize. Same-sex marriage is a relatively new development in American law, and society — some elements moreso than others — haven’t really caught up with it yet. No one expected the advent of same-sex marriage to “impose” this “burden” on “religious” wedding vendors, who did not expect to have to deal with it when they went into the wedding-catering business in the first place. And the “free exercise of religion” is a constitutional right, whereas equal access to the commercial marketplace, free from discrimination, is merely a legal right. The former should therefore trump the latter, in this narrow circumstance, even if it means gay couples cannot ultimately get the precise goods or services they want for their wedding celebrations.
Personally, I don’t like this argument, for all sorts of reasons, not the least of which being that commercial activity (or forbearance) is not an “exercise of religion" if there is to be any distinction at all between behavior that is and behavior that isn’t. But, playing Cake Jesus’s advocate, that’s the best I can come up with.
Conclusion
So, in the end, for Cake Jesus to win the Court is going to have to essentially legislate from the bench, and write into the Colorado statute a provision that if the merchant is an “artiste” who offers and provides goods and/or services for wedding ceremonies and/or receptions, (s)he is exempt from suit or enforcement of the statute if (s)he refuses to provide such goods and/or services in connection with a same-sex wedding, based on a “sincerely-held religious belief” that same-sex marriage is wrong. The Court will have to further circumscribe its ruling to “the present circumstances” only, and state that it is not to be applied to any other type of merchant, in any other business, any other commercial context, any other category of goods or services, any other “belief” (“religious” or otherwise, “sincerely-held” or otherwise) about any other subject, or any other basis of discrimination (i.e., any other protected class or characteristic) where such discrimination would otherwise be unlawful.
The foregoing result would be wholly unprincipled, but that’s the only way Cake Jesus can win.