The Volokh Conspiracy
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Here I will consider how the MFN theory was expanded to its present bloated proportions. Recently members of the Court, and sometimes a majority, have developed variants of MFN that are far more far-reaching and skeptical than the modest heightened scrutiny suggested by Lukumi.
The key innovation, pioneered by Justice Gorsuch in his concurrence in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (a case that did not mention MFN at all) and pursued further in his opinions on Covid vaccination, attributes to the challenged law a different purpose than it actually has, and then declares that the state has discriminated by carving out a secular but not a religious exception to that purpose. Call this MFN-2.
Masterpiece Cakeshop involved a challenge to an antidiscrimination statute by Jack Phillips, a baker who refused to make a cake for a same-sex wedding. Gorsuch thought that religious bias was revealed by a second set of cases that arose at about the same time.
William Jack requested cakes displaying antigay inscriptions. When bakers refused, he sued them for religious discrimination. The Colorado courts rejected his claims, because the bakers would not sell such cakes to anyone. Gorsuch however thought the cases were alike. Phillips is happy to sell his products to gay people. He just won't engage in conduct that endorses same-sex weddings. A "cake celebrating same-sex marriage" is part of an event in which he is unwilling to participate. Gorsuch thought that, because Phillips and the bakers who refused Jack's order were alike declining to send messages, their different treatment revealed discrimination against Phillips's religion.
That claim was not confined to Gorsuch's concurrence. Justice Kennedy's majority opinion summarily declared an "indication of hostility [in] the difference in treatment between Phillips' case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission." This summary statement is, perhaps, an early embrace of MFN-2 by the Court. If so, it is so conclusory that we must look to Gorsuch for an account of the reasoning.
Justice Kagan responded that what Phillips refused to sell "was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings." Jack's case is different, because the bakers would not have sold the cake he requested to anyone. Those cakes manifested his religious views, but there is no obligation to sell products that manifest religious views. A vendor of hats is permitted to omit yarmulkes from its inventory. The actions of the bakers in Jack's case were not excused by exceptions to the statute. They were outside its coverage.
Gorsuch's reasoning overlooks the level of generality at which Colorado law actually operates. The state explained in its brief: "If a retail bakery will sell a cake of a particular design to some customers, it has no constitutional right to withhold that same cake from others because of their race, sex, faith, or sexual orientation." The bakers Jack approached would not have sold the cakes he requested to anyone. The state's brief continues:
But businesses do not violate public accommodations laws when, relying upon general terms of service, they decline to sell products with particular designs to all of their customers. Businesses trigger those laws only when they refuse to sell a product to customers because of their protected characteristics, despite selling the same product to others.
Phillips would have sold the identical cakes to heterosexual couples.
Gorsuch also deploys MFN-2 in Dr. A. v. Hochul, in which a state allowed medical but not religious exemptions from a vaccine requirement for health care workers. He takes the pertinent state interest to be getting people vaccinated in order to achieve herd immunity. But the state asserted a different interest: promoting public health. That end is not promoted by vaccinating people for whom it is medically counterindicated. It is promoted by vaccinating the religious. It is thus not true that the secular exemption "undermines the government's asserted interests in a similar way." He can reach that conclusion only by mischaracterizing the government interests.
A judge who feels free to do this is absolutely unconstrained. He can find religious discrimination in any law he likes, by deeming any boundary to a statute's scope—and all statutes are bounded; none regulate all of human conduct—to be an exception to the purpose of the statute.
Note that MFN-2 is merely a triggering right that generates strict scrutiny. It does not say anything about how a court should proceed when it applies that scrutiny. Because MFN-2 misconceives the state interest, however, it makes it likely that the strict scrutiny analysis will be botched, because the court is already committed to misunderstanding the interest that the state is promoting. This, we shall see, is precisely what happens in MFN-6.
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