No one can predict the outcome of the crucially important and high profile case of Masterpiece Cakeshop vs. the Colorado Civil Rights Commission. But participants in and expert commentators on the case tended to indicate that Jack Phillips, the owner of Masterpiece Cakeshop has a strong case and may prevail, especially in his claim to freedom of expression, in declining a cake for a same-sex wedding. The opinion was offered in two events in the Washington area, one at the Cato Institute on Dec. 4, the day before the case was heard, and the other at the Heritage Foundation on Dec. 6, the day after the hearing. Such a result has so far been rare when these cases have been brought in jurisdictions with sexual orientation and gender identity (SOGI) laws.
Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute, appeared at both presentations and noted key elements which point to a favorable verdict for Masterpiece Cakeshop.
Shapiro maintained that the Masterpiece Cakeshop case is not a “case about competing rights, or competing peoples.” A large part of the difference between the current case and the earlier same-sex marriage cases, he said, is that those cases concerned public action – who is eligible to marry – not private action related to same-sex marriage or homosexuality. He noted Justice Anthony Kennedy’s comment in the Obergefell vs. Hodges(same-sex marriage) decision – that people opposed to same-sex marriage often base their claims on “decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”
The case, Shapiro said, concerns “private actors and people living together in a pluralistic society.” He said that “the awesome force of government shouldn’t be brought to bear on stamping out dissenting views.” It is principally a free speech case, because the Employment Division vs. Smith (1990) ruling gives no grounds for constitutional action against an infringement of religious freedom which is “neutral” and “generally applicable.” But some free exercise of religion aspect does remain. Colorado anti-discrimination law has not been used in a neutral way, i.e., those opposed to the religious condemnation of homosexuality have not been penalized for declining cakes requested by religious believers to express such condemnation, while a Christian baker has been prosecuted for declining a same sex wedding cake. There is also, Shapiro said, a difference between being “stopped from doing something that your religion requires,” which was the case with the Indians claiming the right to smoke peyote in the Smith case, or the Mormon polygamy case in the nineteenth century on the one hand, and being “forced to do something” your religion forbids, which is the situation with Masterpiece Cakeshop on the other. Shapiro maintained that free exercise forbids requiring people to “celebrate events” that are contrary to their religion. This writer has noted several times an academic defense of an absolute right to liberty of conscience.
But regarding free speech, Shapiro noted the celebrated opinion of Associate Justice Robert Jackson in the 1940s, in ruling against requiring Jehovah’s Witness children to recite the pledge of allegiance. Jackson said that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” Freedom of expression also includes the right to exclude messages from an agent’s expression, as the Supreme Court determined in the Hurley vs. the Irish-American Gay and Lesbian Bisexual Group of Boston (1995) case, in which an LGBT group wanted to participate in a St. Patrick’s Day parade with an LGBT banner.
Repeatedly noting that Jack Phillips was willing to serve homosexual customers, but not to supply a custom designed wedding cake for a same-sex marriage, Shapiro said that Masterpiece Cakeshop and similar small businesses are taking an unpopular stand. It is a serious issue, because sexual orientation and gender identity are now protected categories in many jurisdictions. He said that a “parade of horribles” will result (which this writer would consider already to have occurred) if the Supreme Court agrees with the Colorado Civil Rights Commission. The court will have confirmed that people are required to convey religious, political and ideological messages that they disagree with.
In response to Shapiro at the Cato event on December 4, John Paul Schapper-Casteros, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense Fund, construed denial of a homosexual wedding cake as discrimination against homosexual customers per se (although, as Shapiro indicated, Phillips is also unwilling to provide cakes for homosexual ceremonies to heterosexual customers). He said that most people understand the Masterpiece Cakeshop case to be about free exercise of religion, even though its free speech aspect is being emphasized. Schapper-Casteros then referred to the case of Newman vs. Piggie Park Enterprises, Inc., (1968) a barbecue chain, in which the Supreme Court ruled out a religious objection to racial discrimination, and thus, he seemed to argue, to rule out a religious objection against all antidiscrimination categories.
But, as this writer has often noted, racial discrimination, which involves an immutable characteristic, is not like behavior-based discrimination, which is absolutely necessary for society to function. Sexual orientation and gender identity (SOGI) laws, simply rule out discrimination against persons who identify as homosexual or transgender. But they are interpreted by the courts to rule out discrimination against a particular type of behavior – homosexual behavior – and thus directly attack religious beliefs and moral conviction, regardless of attempts to recognize the well intentioned nature of such beliefs and conviction.
Endeavoring to advance the race analogy, Schapper-Casteros referred to both religious support and religious opposition to racial integration, apparently implying that the government may judge one religious conviction correct and another incorrect. He cited as well the Bob Jones University vs. the United States case (1983), in which the Supreme Court declared that tax exemption must convey a public benefit which is eviscerated if the religious policies of the exempt organization are greatly at variance with society’s moral consensus. There can be no “religion based justification for differential treatment,” said Schapper-Casteros, even if they are offered as free speech arguments. This would seem to mean that there can be compelled speech, if it is needed to combat “religiously motivated differential treatment.” One wonders what constitutional reason can be given why religious motivation should be disallowed while other motivations, perhaps even conscience motivations, might be acceptable. The real Constitution in fact favors religious exercise and gives religious freedom priority among Constitutional freedoms and ideals.
Shapiro maintained that the Piggie Park case is irrelevant. The Masterpiece Cakeshop case is not a straightforward attack on civil rights law, he said. Masterpiece Cakeshop is not denying service to persons, but declining to provide a message. He again quoted Justice Jackson in the West Virginia Board of Education vs. Barnette case (involving Jehovah’s Witnesses objecting to the pledge of allegiance) saying “freedom to differ is not limited to things that do not matter much, that would be a mere shadow of freedom, the test of its substance is the right to differ as to things that touch the heart of the existing order.”
At the Heritage Foundation on Dec. 6, the day after oral arguments were heard at the Supreme Court, Elizabeth Slattery of the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies began a panel discussion on the case. She noted that while Justice Kennedy seemed troubled by the Masterpiece Cakeshop case’s threat to his own jurisprudence of “dignity” with respect to the homosexual community, he also noted that tolerance is a two way street.
Kristen Waggoner, Senior Vice President and General Counsel of Alliance Defending Freedom, was lead counsel in the Masterpiece Cakeshop case, and had argued the previous day before the Supreme Court. She also noted that the Supreme Court has recognized that “freedom to differ has to be extended to things that matter.” Sex, marriage, and religion certainly matter – society is constructed by them. Sexual orientation and gender identity (SOGI) laws are being used to suppress opinion, she said, particularly the opinion that marriage is between a man and a woman. Religious merchants serve all people, but cannot provide goods and services that contradict their beliefs. Punishments for violating SOGI laws include not only the threat of fines and possible closure of business, but also jail time, with real defendants facing this in Massachusetts and Arizona. She said that Phillips has refused cakes that convey different messages that he disagrees with: Halloween cakes, sexually explicit cakes, anti-American cakes, cakes in celebration of divorce, cakes that are derogatory of individuals, including LGBT individuals.
She also pointed out that the Colorado Civil Rights Commission exhibited non-neutrality about religious viewpoints. They penalized Phillips but not bakers who refused cakes condemnatory of same-sex marriage, with one commissioner condemning religious freedom as justifying slavery and the holocaust. This, she said, proved to be an important point for the court. Waggoner said that, in line with the Hurley case noted above, courts should “look at the message, not the person.” She also said that she came away from the court “cautiously optimistic,” but clearly impressed that a close decision is likely.
Lloyd Cohen, Professor of Law at George Mason University’s Antonin Scalia Law School, was also present at the Heritage event. He endeavored to respond to the claim that recognizing religious exceptions to SOGI laws would result in a “Balkanized” country. Cohen said that granting liberty of conscience will simply result in a society differentiated by the market. Cohen said he expected, however, that if Phillips wins, he will “win on the narrowest of grounds,” likely free speech grounds. He added that “we will be fed a few First Amendment crumbs from the constitutional table, and expected to be grateful supplicants in their receipt.”
While opponents of conscientious objection to homosexual behavior insist that prohibiting discrimination against such behavior is a “compelling state interest,” Cohen said that the phrase “compelling state interest” is “invoked as a cant phrase and never put to a serious test … Protecting some of its citizens from hurt feelings is not a serious competing interest” to the general presumption of liberty. Cohen worried that a narrow decision on free speech grounds will not protect the “florist or caterer,” from being required to violate their consciences, “because their contribution is not sufficiently expressive.”
Shapiro said at the same event that many bakeries in the vicinity of Masterpiece Cakeshop advertise that they provide cakes for same-sex weddings. He approvingly reported a comment by journalist David Brooks that there are “nonlegal, social ways of dealing with slights.” Against Justice Sonia Sotomayor’s repeated references to Jim Crow cases in which blacks were denied service, Shapiro said that no one taken to court has denied service to homosexuals, but only to providing goods and services that the merchants find objectionable.
Highlighting that Justice Kennedy said in the December 5 hearing that “the state has been neither tolerant nor respectful of Mr. Phillips religious beliefs,” Shapiro said this case is about “persecuted minorities, namely, the very few small businesses that can’t bring themselves to support same-sex weddings.” He added that “more fundamentally, it’s about freedom of speech and conscience and recognizing that the awesome force of government shouldn’t be used, shouldn’t be brought to bear on stamping out every last dissenting view.” Again quoting Justice Jackson in the Barnette case to the effect that the government cannot compel citizens “by word or act” to support an orthodoxy, Shapiro then observed that Kennedy could have avoided the current controversy by specifying in the same sex marriage decision that the protection enjoyed by social conservatives to advance traditional marriage and morality applies not only to teaching, but also to action.
Slatterly observed Solicitor General Noel Francisco argued that Masterpiece Cakeshop is “the flip side” of the Hurley case. The Hurley case said that freedom of speech means people can be excluded from expressive events, the current case should say that people can’t be required to be part of an expressive event. There is “a very low bar” for free speech claims, Waggoner added.
Masterpiece Cakeshop and recent, similar cases provide a reality check against proposals for new SOGI laws and civil rights or human rights commissions, Waggoner believes. She said that victims can now testify about consequences of SOGI legislation and human rights apparatus where these are being considered. Nor is the freedom lost to the antidiscrimination regime beyond recovery, Shapiro asserted. The Canadian Human Rights Commission, which had the power to censor public expression that it thought conducive to hate, had its power curtailed when the Canadian Human Rights Act was amended in 2013 to repeal Section 13, which gave the Commission the effective power of censorship.
Similar remedial action to SOGI legislation could help distinguish between persons and their behavior, enabling all citizens to speak and live by their consciences.