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Monday, June 26, 2017

SCOTUS OT16 Symposium: Does the Status-Conduct Distinction in Trinity Lutheran Church lend support to the baker in Masterpiece Cakeshop?

Trinity Lutheran Church v. Comer, decided today, rests on a status-conduct distinction that bears an uncanny resemblance to a similar distinction in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case for which the SCOTUS today granted cert. Could this distinction, which favored the Church in TLC, also favor Masterpiece Bakeshop's free exercise claim?

Being a federalism-inclined law prof when it comes to religious freedom (and most other topics as well), I would deplore such a move. But I could see a reasonable justice's inferring that, if Missouri is constitutionally entitled to discriminate on the basis of religion to avoid being dragooned into supporting the "conduct" of religious education with tax dollars, the Masterpiece Bakeshop ought to be entitled to avoid being conscripted into supporting the "conduct" of same-sex weddings with cakes. Put another way, if facial neutrality of a school voucher program does not suffice to protect a state's taxpayers from the "appearance" of supporting religious education, then then why should the facial neutrality of an anti-discrimination law suffice to save the bakeshop from the analogous appearance of supporting a same-sex wedding ceremony? Calls for "federalism all the way down" invite such analogies between the powers of states and the rights of private organizations, suggesting the devolution of powers enjoyed by the former to the latter in the name of decentralization writ large.

Of course, the SCOTUS might just reiterate that Smith allows all facially neutral laws to be enforced against any employer, at least if the hiring of "ministers" or Yoder-style hybrid rights are not at stake. There is an analogous and equally obvious argument based on Rumsfeld v. FAIR for freedom of speech claims. But suppose that there are five votes to narrow Smith and FAIR. If so, TLC's status-conduct distinction provides coordinates for a surgical strike on facially neutral anti-discrimination laws that could leave standing these laws' prohibition on "status"-based discrimination. To the extent that five justices worry that these sorts of "complicity-based" claims could gut anti-discrimination laws, the status-conduct distinction provides a tempting way to limit the damage but even the score for religious believers.

1. The analogy between status-conduct distinctions in MLC and Masterpiece Bakeshop

First, let's start with the easy analogy. Here's how the status-conduct distinction could migrate from one case (as a delineation of Tenth Amendment powers of the states) to the other (as a delineation of some sort of private free expression/free exercise right). In TLC, the Court distinguished Locke v. Davey by observing that, because Missouri discriminated on the basis of religious "status" rather than "conduct," Missouri had no powerful interest in depriving the church school of ground-up tires for its playground. After all, Missouri had no anti-establishment objection to kids not skinning their knees on pea gravel beyond the fact that they attended a school with a religious "status." By contrast, four votes in the TLC majority (Roberts, Alito, Kennedy, and Kagan) saved a bit of Locke by noting that Missouri might possibly have a stronger interest in withholding money destined to subsidize religious activities (say, religious education or, perhaps, even math education with a spiritual bent). Put another way, despite a constitutional principle ordinarily barring discrimination based on religion, Missouri might be entitled by the Tenth Amendment to draw religion-based distinctions in order to insure that its taxpayers are not coerced into subsidizing religious actions with which those taxpayers disagree.

Compare Masterpiece Bakeshop's claim for a constitutional entitlement to discriminate on the basis of its customers' "actions" in entering into a same-sex marriage rather than their "status" of being gay or lesbian. The bakeshop insists that it is happy to serve same-sex couples or LGBT individuals and, indeed, claims to have done so in the past. The bakeshop simply does not want to support a particular sort of "conduct" -- a wedding ceremony to which the bakeshop objects on religious grounds -- by supplying a cake that allegedly communicates a message of celebration and support.

Could Masterpiece analogize its free exercise interest in avoiding the appearance of supporting particular expressive wedding conduct to Missouri's analogous interest in avoiding the appearance of subsidizing the "conduct" of religious studies? Missouri has (apparently) some sort of powerful interest in not having its taxpayers be dragooned into supporting religious education to which those taxpayers might object. Why does the bakeshop not have an analogous interest in avoiding being dragooned into supporting a wedding message to which it objects?

2. What about precedents like Smith and FAIR v Rumsfeld?

Of course, one could cite the usual precedents (Smith, FAIR, etc.) for the proposition that states have broad authority to enforce religiously neutral or speech-content-neutral laws even when such laws impose "incidental" burdens on religion or speech. Plenty of scholars have applied these sorts of precedents to claims like Masterpiece Bakeshop's to conclude that such claims lack merit. But such reliance on precedent sounds a bit like scholars' rebutting the case against ACA's individual mandate by citing Wickard. For those who want to narrow Smith, the major obstacle is not words on the page of some earlier volume of U.S. Reports but rather the worry that the SCOTUS would face an endless parade of increasingly offensive claims for exemptions from anti-discrimination laws, claims that could either cause major portions of the states' police powers to crumble or place the SCOTUS in the embarrassing position of making purely political and ad hoc distinctions between levels of burdens.

The status-conduct distinction of TLC might conceivably provide a simple way to limit the damage to the states' police powers in a way analogous to the action-inaction distinction's limit on the Court's incursion on the Congress' commerce power in NFIB v. Sebelius. The Court might hold that, by forcing (certain) businesses (sole proprietorships?) to supply "expressive" services supporting "conduct" to which the business owner has religious or even ideological objections, state or local laws violate the First Amendment's free speech or free exercise clause. Cakes, flowers, and photos might sufficiently qualify as "expressive" along the lines of Hurley. By emphasizing that businesses could not use the First Amendment to exempt themselves from laws forbidding discrimination based on racial, religious, or gender "status," a SCOTUS majority might try to cut short a parade of horribles in which anti-discrimination laws generally bite the dust to complicity-based free exercise claims.

3. Why might such a "conduct"-based theory be tempting, if not persuasive?

As I noted above, I would deplore such an incursion into the states' Tenth Amendment powers, and I tend to doubt that a status-conduct distinction would sufficiently minimize the damage. But I could see why some justices might be tempted to limit Smith and FAIR to even the score between religious and secular interests. After all, so long as Lemon stands, those who object to states' providing aid to religious "conduct" can bring an Establishment clause claim insisting that states carve out special exceptions to such laws, even when such laws are facially neutral w.r.t religion. If a taxpayer can be coerced into complicity with religion by a voucher formally extended to all schools, religious and secular, then why cannot a small business be coerced into complicity with non-religion by a facially neutral anti-discrimination law?

The solution, a federalist like myself would say, is to strengthen Smith by eliminating the last vestiges of Lemon. Zelman went a good way towards such elimination. Even Zelman, however, focuses on the actual, practical freedom of parents to make non-religious choices with facially neutral vouchers, while Smith, by contrast, ignores the actual, practical freedom of religious believers to escape generally applicable burdens. Until this asymmetry is remedied, some justices will feel a justifiable temptation to narrow Smith with something like the status-conduct distinction in TLC.

Posted by Rick Hills on June 26, 2017 at 05:07 PM in 2018 End of Term | Permalink


The right analogy to the policy of the baker in Masterpiece Cakeshop is not a state policy denying an educational subsidy to students of devotional theology, as in Locke v. Davey, but a state policy granting an educational subsidy to students of Christian devotional theology while denying it to students of non-Christian devotional theology. As far as I know, nobody thinks that such a state policy would be constitutional.

Posted by: JHW | Jun 26, 2017 5:22:22 PM

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