(Opinions Under Wraps; sketch by Arthur Lien @Courtartist, June 4, 2018)
[A note to readers: As I pointed out in my earlier posts about this case (here and here) I claim an exemption from my usual neutral stance. You can read about this case, the oral arguments, and my position in those posts. Post-decision reaction with which I agree can be found in the Take Care blog postings of Professors Tuttle and Lupu and Professors Tebbe and Sager]
Masterpiece Cakeshop v. Colorado Civil Rights Commission was handed down on June 4, and all hell broke loose on social media. Reaction spanned the ideological spectrum, everything from a sign of the Second Coming to the start of the apocalypse. Press reports trying to accurately describe the opinion as “narrow” (quite correct despite a 7-2 vote) were accused of bias against the baker. Much of the commentary seemed to me to be based on the technical result and the vote total with little or no regard for the reasoning of the majority. You wondered if they even read the opinion.
As Amanda Shanor from the ACLU astutely observed, “[i]n some cases, the public perception of a case–not its actual holding–is what is most important.” As one of the lawyers who represented Mullins and Craig, the couple denied the cake, she characterized it as “perhaps the best loss we could have received”. And so it is. I would have sided with the dissent (written by Justice Ginsburg, joined by Justice Sotomayor) for reasons I state below, and there’s reason to have some concern about the Court’s opinion. But I agree with Joshua Matz that while “I’m not enthusiastic about the holding…[the] reactions of fury and despair are misplaced.” Let’s see why this is so.
First: yes, the baker won. But the victory was on the most narrow ground possible. The Court rejected the baker’s far-reaching claims that either his free speech or free exercise rights exempted him from Colorado’s anti-discrimination statute. And Justice Kennedy cited Newman v. Piggy Park Enterprises, 390 U.S. 400 (1968) in support, a case that flatly rejected the owner’s religious views as a justification for refusing to serve African-Americans. This was exactly not the holding that the baker and his allies wanted. As one commentator put it, “we lost the battle but won the war” So how did the baker win this battle?
He won because of the Colorado Civil Rights Commission’s “clear and impermissible hostility”, expressed by two of the seven members, towards the baker’s claims based on his religious objection to same-sex unions, a hostility that deprived the baker of “neutral and respectful consideration of his claims”. Kennedy wrote that “By describing it as despicable, and also merely characterizing it as rhetorical–something insubstantial and even insincere” the Comission, in the Court’s view, was not neutrally enforcing civil rights law, but was condeming the baker’s faith.
It is this narrow holding–and, once again, “narrow” refers to the reasoning, not the vote total, which many people seemed to misunderstand or ignore–that garnered seven votes. Did Justice Kennedy avoid the tough issues? No doubt. And despite citing Piggy Park, there was no reliance on the general rule set out by the Court in Employment Division v. Smith, 494 U.S. 872 (1990) which states that there is no requirement for a state to carve out a First Amendment free exercise exception to a law of general applicability, although the majority did not question that holding. Justice Kennedy crafted an opinion that “seeks to model a conception of civility that takes seriously the claims on both sides of this controversy” as Joshua Matz puts it. The closing lines of the majority opinion bear this out:
These disputes must be resolved with tolerance, without undue disrespect to sincere religious veliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market
Justice Kennedy also made it clear that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth”, a statement that had all of the Court (with the possible exception of Justice Thomas) behind it, and also made it clear that the LGBT community deserves the same protection as other groups (citing Piggy Park). And Kennedy sidelined the argument that discrimination does not burden gay people because they can find other vendors: the constitutionally relevant harm “a community-wide stigma inconsistent with the history and dynamics of civil rights law that ensure equal access to goods, services, and public accommodations”.
Wonderful–and important– language, language that will be quoted often as cases similar to Masterpiece make their way through the courts. But Kennedy sidestepped the hard questions and although the first application of Masterpiece in Arizona sided with the city of Phoenix and its anti-discrimination statute (and against the vendor) there are plenty more cases, including a cert petition by a Washington state florist who, like the baker in Masterpiece, refused service to a gay couple and lost all the way up. There is even speculation about what, if any, effect Masterpiece might have on the Travel Ban case: if you can’t make and enforce laws based on religious animus, does that affect the ban?
A word about Justice Ginsburg’s dissent. Dissents usually don’t start out with “There is much in the Court’s opinion with which I agree.” But the result, no. I would have joined the dissent because I believe it provides a straightforward, practical solution. (Indeed, some commentators contrasted the theoretical aspects of the majority to the practical aspects of the dissent). Although the dissent does not deny the statements made by the two Commissioners, Ginsburg points out the obvious facts: that they are two out of seven, the Commission being the third level of review (after the staff of the Commission and an Administrative Law Judge) and were themselves reviewed by the Colorado Court of Appeals de novo (that is, the court heard the case as if it were new to them). Badly stated by two members? Yes. A prejudice that infected four layers of review? Justice Ginsburg wasn’t buying Justice Kennedy’s artifice.
With a majority opinion that got seven votes but provides little (if any) guidance, cases like Masterpiece will continue to wend their way up through the system. The first–the florist–is already there. Stay tuned; this is only the beginning.
Next up: the Ohio voting rolls case was decided today (June 11) along with three other cases. That case is my next post. That leaves 21 cases to go. The Court will likely hand down opinions this Thursday: there are rapidly approaching the end of the term.
Ignorantia Legis Non Excusat 