More on Masterpiece Cakeshop, from Prof. Michael McConnell

Prof. Michael McConnell (Stanford), one of the leading American scholars of the Religion Clauses, wrote this when Masterpiece Cakeshop came down earlier this month, and I wanted to pass this along, especially since the Court is still considering whether to hear Arlene's Flowers, and other cases are percolating up as well:

The Supreme Court … confounded all expectations, and decided the highly controversial Masterpiece Cakeshop case by a 7-2 vote. This is the case about a Colorado baker who, in accordance with his religious beliefs that marriage is properly confined to a man and a woman, declined to "design and create" a cake celebrating a same-sex wedding. The Court held that penalizing the baker for this refusal to violate his religious convictions violated the principle that the government "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." The Court emphasized the fact that the State of Colorado had permitted three other bakers to refuse to provide cakes that expressed sentiments opposed to same-sex marriage, condemning this disparity in treatment as demonstrating hostility to religious views.

In these days of intense culture conflict, the Supreme Court's 7-2 majority demonstrates that concern about hostility and intolerance toward religious views is not a right-wing distraction, as some people say, but a broadly held and fundamental part of our constitutional values. The Court is to be commended for transcending its political divisions and delivering that much-needed message. It bears mention that four of the last five decisions by the Court protecting religious freedom were by unanimous or 7-2 votes, all of them against the government and all of them reversing lower court decisions.

The price of a broad majority is typically a narrow—and often a vague—opinion, and Masterpiece Cakeshop is no exception. The majority opinion, by Justice Anthony Kennedy, scrupulously avoided expressing an opinion about similar cases that might arise in "other circumstances" in the future.

But no one should mistake the principle: If a state recognizes the right of "shopkeepers" to refuse service on the basis of secular principles, it cannot punish others who refuse service on the basis of religious principles. The case might be different if all bakers were required to bake all cakes expressing all ideas—but Colorado did not have such a rule. The constitutional principle recognized in this case is not of expansive freedom for religious exercise, but simply of neutrality. The principle is "narrow," but it is supremely important.

In a response to an e-mail query of mine, Prof. McConnell elaborated:

Enforcement of a genuine public accommodation law, such as a public utility law that requires the utility to serve all comers on a nondiscriminatory basis, would not violate the Free Exercise Clause as interpreted in Smith, because such a law is neutral and generally applicable. A law that allows some bakers to choose not to bake cakes contrary to conscience but requires others to do so, is not neutral or generally applicable, and warrants strict scrutiny.

If the Hobby Lobby Electric Corp. denied service to a household of devil worshipers, it would lose a free exercise case under Smith. But if the Social Justice Water Works were permitted to deny service to the Ku Klux Klan Country Club, Hobby Lobby Electric's case would be different. The state cannot allow non-religious people to follow their consciences but strictly enforce the law against religious people. That, I think, is the enduring legacy of Masterpiece.

If Prof. McConnell is right, and a state that allows bakers to refuse to write anti-gay messages must also allow bakers to refuse to provide cakes for same-sex weddings (or refuse to provide serve to Satanists), then Masterpiece will be influential indeed. After all, almost all American laws banning discrimination in most places of public accommodation let people refuse service on the basis of secular principles, when the refusal is based on disapproval of a person's nonreligious ideology. The laws generally ban discrimination based on race, religion, sex, and national origin, and in many states, counties, and cities based on sexual orientation. But very few ban discrimination against customers based on political beliefs. (I agree that some laws governing public utilities and a few other entities require them to serve everyone, with only a few exceptions; but the current debate is about the more common public accommodation discrimination laws, which only ban certain bases for discrimination.)

Caterers, for instance, are free to refuse to cater a Socialist's wedding, the birthday of an opponent of homosexuality, an environmentalist gathering, or a pro-gun-control event. That is true whether this refusal stems from their religious principles or their secular principles, and whether the would-be customer's Socialism, opposition to homosexuality, environmentalism, or support for gun control stems from the customer's religious beliefs or the customer's secular beliefs. But caterers are not free to refuse to cater a Catholic's wedding, or a same-sex wedding, or an interracial wedding (again, whether this refusal stems from their religious principles or their secular principles).

If Prof. McConnell's position is that, once a state decides not to ban discrimination against anti-gay customers (or, to take the other example, KKK customers), it must likewise allow refusal to supply same-sex weddings, then such refusals to supply same-sex weddings would be legal pretty much everywhere. And this logic wouldn't just be limited to expressive businesses (such as photographers, calligraphers, singers, or, in the view of some, wedding cake bakers), but would also apply to caterers, hotels, limousine drivers, and the like.

But I think that's not right as a matter of Free Exercise Clause precedent, which (at least as the Court interpreted it in Employment Division v. Smith) generally bans discrimination against religious practices. Treating discrimination based on a person's ideology differently from discrimination based on a person's sexual orientation is not discrimination against religion, even if these days refusals to provide goods and services for same-sex marriages tend to be religiously motivated.

When someone refuses to make a cake for a same-sex marriage, it may not be discrimination based on the sexual orientation of the buyer of the cake; the baker doesn't care about who places or pays for the order (it might well be a straight friend or family member). But a state may reasonably interpret it as discrimination based on the sexual orientation of one set of the ultimate users of the cake—the marrying couple, who are being discriminated against precisely because they are engaging in one of the defining characteristics of gays and lesbians, i.e., showing and pledging romantic love to a member of the same sex. (This is why we'd treat refusal to bake a cake for an interfaith wedding as religious discrimination even when the baker doesn't care about the religion of, say, the mother of the bride, who is ordering or paying for the cake.) On the other hand, when someone refuses to make a cake with an anti-gay message, or even refuses to make any cake for someone who he knows is anti-gay or will use it at anti-gay event, that is not discrimination based on the buyer's or users' sexual orientation or religion; the baker doesn't care about the religion of either the buyers or the users of the cake, but only about their beliefs about homosexuality, whether religious or secular.

On the facts of Masterpiece Cakeshop itself, there was evidence that the Colorado courts legally analyzed the refusal to bake the cake with an anti-gay message inconsistently with how they analyzed the refusal to bake the cake for the same-sex wedding; see this post for more details. But, as Justice Kagan and Breyer argued in their concurrence—I think correctly, when it comes to the Free Exercise Clause question—other states don't have to make the same mistake, and yet can still treat discrimination based on sexual orientation (again, the sexual orientation of the ultimate users of the cake) differently from discrimination based on ideological views about homosexuality.

Of course, that still leaves the Free Speech Clause question: Even if there's no discrimination against religious people in the enforcement of these antidiscrimination laws, when do the laws impermissibly compel speech? That is a complicated question, which has been discussed here and elsewhere in detail (see, e.g., here); lower courts have been facing it in many cases, and the Supreme Court may have to return to it. Here Prof. McConnell and I are speaking only about the discrimination-against-religion Free Exercise Clause question.