Why Masterpiece Cakeshop is a Harder Case Than You Think (and Why Federalism Can Help Resolve It with a Meta-Accommodation of Religious Disagreement)

In our polarized times, it is easy to be overly dismissive about arguments that contradict one's strongly held convictions. Common judicial and academic reactions to the "wedding vendor" cases like Masterpiece Cakeshop or Arlene's Flowers provide a case in point. As I suggest after the jump, academics tend to dismiss these vendors' claims with slogans that, in other contexts, would be regarded, at best, perfunctory -- the beginning rather than the end of an argument. My own view is that the vendors' claims raise genuinely hard questions that cannot be cavalierly brushed aside by brandishing Smith or blustering about commercial actors' lack of First Amendment rights. In fact, as I argue here, these questions are RADDs -- reasonable and deep disagreements -- that our federal system is well-suited to finesse rather than resolve. For that reason, I am inclined to urge that SCOTUS affirm the Colorado court in Masterpiece Cakeshop-- not because the baker does not have a plausible First Amendment argument (he does) but because, in a federal system, the federal courts ought to bend over backwards to allow different states to adopt different reasonable views about religious liberties.

But, first, consider why the the usual arguments brandished against wedding vendors' claims for some sort of accommodation are merely plausible rather than slam-dunks.

1. Why there really is no right answer in Masterpiece Cakeshop

Take the common argument that commercial activity should not be protected by the First Amendment, either because "commerce is not religious free exercise" (see, e.g., Eric Segall's impatiently brisk argument over at Dorf's blog) or because, by entering the marketplace, one somehow waives one's First Amendment associational rights (a position most famously defended by Justice O'Connor's concurrence in Roberts v. U.S. Jaycees). Contrary to these assertions, I think that it is plain to anyone not blinded by their priors that commercial actors can have substantial interests in religious freedom and free speech even when acting in a commercial sphere. Title VII requires employers to accommodate their employees' religious practices precisely because we Americans do not believe that we waive all of our personal rights whenever we engage in commerce. If one does not waive one's rights when selling labor, then why when selling cake or flowers? As for Segall's notion that commerce is not religious exercise, the claim seems question-begging: If the vendor makes a sincere claim that her religion forbids an action required by the law, then the prohibition would seem to be religious free exercise by any reasonable definition. Would Segall seriously contend that a law requiring all butchers to sell pork would not encroach on the religious exercise of kosher butchers, because selling meat is not a religious act?

Consider also the idea that refusing to provide a service to a customer imposes a "harm" on third parties that undercuts the right to a religious accommodation. As I have explained elsewhere, these sorts of arguments assume uncontroversial baselines by which to define "harm" where no such consensus about baselines exists. Why, after all, is not the customer "harming" the shop-owner by demanding a service or good that could be bought elsewhere without much trouble? It might be, as Nejaime and Siegel argue, that the refusal to serve inflicts a "dignitary harm" on the refused customer -- but why does the insistence on service, with equal plausibility, imposes an equal and opposite dignitary harm on the vendor? Moreover, if the state's only purpose in imposing the duty to serve (rather than a duty to make a referral to another vendor) is suppression of a stigmatizing message, then why is such a purpose not a content-based regulation of speech under any purpose-based theory of the First Amendment? As Andy Koppelman noted a couple of years ago, "the dignitary harm of knowing that some of your fellow citizens condemn your way of life is not one from which the law can or should protect you in a regime of free speech."

Of course, one can pretend that the doctrine is much clearer than it really is by playing the Smith trump card, noting that individuals do not ordinarily have any Free Exercise entitlements to exemptions from generally applicable laws merely because the laws incidentally burden their religious beliefs. Smith, however, is riddled with fine print about hybrid exceptions and individualized exemptions, and the Court has not felt chary about limiting Smith with further exceptions when it feels that the invasion of religious liberty is substantial. Yes, of course, the SCOTUS could brush aside the baker's and florist's claim by citing Smith. The existing doctrine is mushy enough, however, for the Court to revive Yoder's hybrid exception, holding (for instance) the "expressive" vendors have a limited right to refuse to provide a particular type of service (as opposed to refuse to serve a particular type of person) based on a combination of religious and free expression rights. Such an ad hoc exception probably could be delivered with enough doctrinal crampons to prevent the Court from skidding down a slippery slope to the invalidation of Title VII or some such absurdum.

I do not mean to defend such an argument as unquestionably correct: I mean only to suggest that any such argument is not unquestionably wrong. I imagine that we profs would gin up precisely such an argument to protect, say, kosher or halal butchers from ham-handed (pun intended) legal requirements that they sell products forbidden by their faith. Because we have ideological commitments to same-sex marriage we suddenly become dismissive or vitriolic when analogous arguments are proffered on behalf of wedding vendors.

2. How federalism can give both sides equal concern and respect for their equally reasonable views about religious accommodation

Why not acknowledge that the doctrine is pliable and our national traditions and intuitions about the proper scope of religious freedom, conflicted? In such a situation, our federal system provides us with a handy way to show equal concern and respect for our adversaries: Over that range of cases where we reasonably disagree about the scope of our religious liberties, give the states a local option to pick a version of those liberties within the pale of reasonability.

In my draft article, I offer some ideas about the sorts of questions "reasonably" left open by the precedents. Suffice it to say here that, in my view, the precedents construed in a federalism-friendly light, allow a state either to extend or withhold a religious accommodation for wedding vendors like Masterpiece Cakeshop. We have both purpose- and effects-based traditions for protecting religious liberty buried in the precedents: Why not let each state adopt the tradition that most suits its Blueness or Redness? This means that Colorado ought to be allowed to go "full-Smith," free from effects-based arguments that First Amendment associational rights extend into the commercial sphere. But states also ought to be able to provide broad religious accommodations from anti-discrimination laws without being clobbered with Establishment Clause claims that such accommodations unduly advance religion by "harming" customers.

Think of federalism, in other words, as a meta-accommodation of religion -- an accommodation of rival theories about how religion ought to be accommodated. By upholding the Colorado court in Masterpiece Cakeshop based on deference to its subnational resolution of a difficult RADD, the SCOTUS could side-step the dismissive slogans ("no religious freedom for commercial actors!") and instead show respect for both sides of the debate, acknowledging that these are hard questions on which both sides have reasonable things to say.

Let them say those things, then -- in different states of a divided nation, based on a democratic process that gives everyone an equal vote and equal concern and respect.