Two weeks ago, a very dear and longtime friend and confidante suddenly decided and publicly declared that I was “dead to” her and unilaterally ended our relationship, because I had once recently said something to a family member of hers that she construed as “mock[ing] [her] religion”. I wouldn’t have thought, inter alia, that what I said or did might be a “dead-to-me” offense, but there you have it.
Today, the Supreme Court of the United States did something very similar, vacating the finding of the Colorado Civil Rights Commission and the Colorado Court of Appeals that Denver-area baker Jack Phillips violated the Colorado Anti-Discrimination Act (CADA) when he refused to provide a wedding cake for a same-sex couple — not because Phillips didn’t break the law (he did), and not because his “religious beliefs” excuse his conduct (they don’t), but because one of the commissioners, in considering Phillips’s proffered defense, said something nasty about his religious beliefs, calling it “despicable” to use such beliefs to justify discrimination.
Having had some time (i.e., some down time at work) to read the decision, concurrences and dissents, and digest it a bit, a couple of things come to mind. First, the Court managed to avoid — in a way I did not anticipate — creating the unchallengeable blanket affirmative defense to civil liability that could have resulted from a ruling in Phillips’s favor. It did not create a license to discriminate or a “religious” exemption from civil law. But what it did might be almost as troubling — and might even get to that awful place through the proverbial back door.
This ruling is really little more than an admonition to judges, commissioners and administrative decisionmakers everywhere that if a party comes before you and asserts his “religious beliefs” as part of a claim or defense — especially a defense — you had better watch what you say. The First Amendment’s requirement of religious neutrality is so strong that even if you reach the proper outcome based on a fair and objective understanding of the facts and the law, if you say anything that offends the party with regard to his “religious beliefs” or his declarations thereof, any ruling you make against him will be set aside, because you “tainted” the proceedings with your anti-religious bias.
This is a strange decision because it seems to me at least, and apparently to dissenting Justice Ruth Bader Ginsburg, that if “religious beliefs” are not an excuse for discrimination it shouldn’t matter what the commissioners said about Phillips’s assertion or invocation of his religious beliefs as a defense. Indeed, the Court appears to suggest that if the commissioner had said something like this instead:
“Mr. Phillips, I respect, honor and revere your religious beliefs, which I have no doubt are sincere and heartfelt, and I admire you for being a man of faith and conviction standing up for your rights against what you genuinely believe is unjust. However, neither the law nor the Constitution provides for an exemption from anti-discrimination laws based on religious beliefs alone, so although I agree with you that gay marriage is an abomination before God and that anyone who supports it should be condemned to everlasting damnation, I must reluctantly and regretfully rule that your courageous refusal to serve those selfish, Godless queers for their blasphemous celebration of sin was nonetheless in violation of the Colorado Anti-Discrimination Act.”
...all else being equal, the result would have been upheld. OK, I got a little carried away at the end there, but if the commissioner had said any of that and ruled in Phillips’s favor, the decision would have been overturned as being legally incorrect, not because of the commissioner’s disparaging remarks about gay people or invocation of his own religious beliefs. Vacating the result, ratified by the Colorado Court of Appeals, based on comments that were at best incidental to that result, makes very little sense. If nothing else, it implies that religious beliefs might be an excuse from civil liability, because if they can’t be, then it was inappropriate for Phillips to raise them as a defense in the first place; if his beliefs are irrelevant, the commissioner’s comments are wholly immaterial.
So, as of today, “religious” merchants are still not immune from anti-discrimination laws just because compliance would offend their “beliefs” — unless the public official charged with determining and enforcing such compliance says something nasty (or that the merchant thinks is nasty) about religion. Cake Jesus didn’t win because he was right, because he had the better argument, or because the law and the arc of history are on his side; he won because a commissioner hurt his feelings.
The Court is basically treating the First Amendment requirement of “religious neutrality” in a civil case the same way it treats the Fourth Amendment prohibition against unreasonable search and seizure (and other constitutional requirements) in a criminal case. Even if you’re guilty, you get a pass if the police or the court didn’t follow proper procedure or made a mistake. Now, even if you discriminate unlawfully, you get a pass if the decisionmaker didn’t “respect” your religious beliefs.
The former is, obviously, as it should be; I’m not here to discuss criminal law or procedure. The latter, I’m not so sure about. Without saying so, the Court essentially found a procedural due process violation, in a civil case, based on the substantive requirement of religious neutrality based on the First Amendment. What the Court also did today is declare that all religious beliefs, viz., all assertions of religious belief brought before a civil court or administrative tribunal as part of a claim or defense must be assumed to be, must be treated as, and therefore are, as a matter of law, sincere, genuine, honorable and praiseworthy — and may not be doubted, questioned, or characterized in any other way, by a judicial or quasi-judicial officer, which now constitutes reversible error.
Will this have a chilling effect on civil litigation and conflict resolution generally? Hard to say. I can see a couple of things happening: (1) litigants challenging rulings based on discrete comments that they deem offensive to their religious beliefs but that, objectively, aren’t; and (2) litigants claiming to have “religious” beliefs or objections that are in fact neither sincere nor genuine nor honorable, in order to bait judges and commissioners into making disparaging remarks about such claims so they can get a reversal later on down the line. Trial and appellate courts aren’t going to like that.
But what worries me more is the little crack of light that the Court left open, discussed above, vis-à-vis whether “religious” “beliefs” can ever under any circumstances be a defense to a statutory violation or any other civil cause of action. I have always maintained that they can’t, which, if I’m right, makes today’s decision a lot more puzzling. But if I’m wrong, then — no pun intended — G-d help us.
I think what also worries me about this decision is its failure to make important distinctions, coupled with its implicit conflation of unlike concepts. For one thing, the Court equates hostility toward using religious beliefs as an excuse for unlawful behavior, with hostility toward religion per se. It also brings the concepts of “religious beliefs” and “anti-gay animus” a little closer together. Fans of this decision can deny it all they want, but legally, those two things are less distinguishable today than they were yesterday, and while I can’t speak for the LGBT community, I find that rather terrifying.
In closing, I would think that Craig and Mullins could, were they so inclined, re-file their complaint with the Civil Rights Division. The SCOTUS “set aside” the prior result but did not reverse it; whether Phillips violated CADA and whether he had a viable defense to such violation were not decided here. I would think that due process, fairness and substantial justice would afford them, as much as Phillips, an opportunity to be heard and have the case decided by “neutral” commissioners.