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Thursday, August 31, 2017

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.

Posted by Rick Hills on August 31, 2017 at 12:00 AM | Permalink


Just re-read this blog. In terms of solutions, other than the baker being free to discuss his beliefs with customers (and post them in the store and on the website), which would most likely drive all gay customers away, why can't the baker just subcontract the job out. If there's another bakery that could do the same job, then it'd be the baker's burden arranging for another to make it (not the customers). If there is no other bakery available that could do a comparable job (in terms of quality and price), then it's a sign that the customer couldn't take advantage of the free market to get what he wanted. The baker can put a "right to subcontract" clause in each and every contract. If the customer gets the cake they want at the price they want, I don't think they'd care if the baker subcontracted it out - the customer doesn't necessarily have to know that it even happened or the reasons why.

Posted by: vreedlak72 | Nov 5, 2017 11:43:56 PM


In July 2012, Craig and Mullins visited Masterpiece, a bakery
in Lakewood, Colorado, and requested that Phillips design and
create a cake to celebrate their same-sex wedding.

The key word is "design".

Again, from the ruling.

We conclude that the act of designing and selling a wedding
cake to all customers free of discrimination does not convey a
celebratory message about same-sex weddings likely to be
understood by those who view it.

What should be noted is the procedural posture. The administrative judge decided the case on summary judgment, which means, that, for the purposes of the appeal, the defendant's claims must be assumed true.

Posted by: Michael Ejercito | Sep 15, 2017 12:40:12 PM

biff: I was responding to David Bernstein's claim that the anti-discrimination law requires the baker to remain silent about his objection to same-sex marriage. It most certainly does not. All Colorado is saying (in the decision) is that the baker, if he is concerned that the conduct of his corporation selling a cake to a gay couple, in obeyance of Colorado's anti-discrimination law, would be interpreted by others (from the customer to the employees) as the baker "somehow approving of gay marriage", he's quite free to let those "others" know that is not the case. The reality is that the commercial conduct of making/selling a cake for a customer doesn't send any message to those Others that the owner of the business somehow approves of any event at which the product is used or consumed.

Colorado's anti-discrimination law governs conduct - not speech. With respect to speech, the only thing it prohibits is a public accommodation from advertising an intent to violate the anti-discrimination law (like a "No Gays Allowed" sign in the window). False advertising laws (which impact on commercial speech) are perfectly legal laws governing commerce meant to protect customers. Otherwise, Colorado's anti-discrimination law doesn't require the business to say anything at all.

The corporation's "compelled speech" argument would have more credence if the baker had bothered to let the gay customers describe what kind of the cake they wanted (in terms of design or any explicit message) -- in Colorado, the public accommodation can legally refuse service on those grounds. But that didn't happen in this case. The law requires the public accommodation to provide the exact same products/services that are being offered for sale to the public. Say the gay couple wanted the exact same cake (in terms of size, flavoring, design) that the corporation had just made for a heterosexual customer (the "Exact Same Cake"). The provision of the Exact Same Cake to a heterosexual couple would not send a "message" that the corporation approves of (on religious, moral or other grounds) the heterosexual couple's marriage -- the only message received by the Others looking at the corporation's conduct is that there was a commercial transaction involving the purchase of a cake.

Posted by: vreedlak72 | Sep 5, 2017 2:02:46 PM

vreedlak: I believe their argument is that they are being compelled by the government to engage in speech which they do not want to speak. Colorado's reply is that Masterpiece can issue a disclaimer saying that they don't really believe that same sex marriage is good. Masterpiece is arguing that that argument would do away with the whole compelled speech doctrine. Under that reasoning, schools should be allowed to force students to recite the Pledge of Allegiance-after all no one is stopping the students from announcing that they don't really mean it.

Posted by: biff | Sep 5, 2017 9:09:57 AM

And one more thing -- as this has bugged me since Hobby Lobby -- is if shareholders in a corporation can "pierce the corporate veil" in order to impose their personal religious beliefs upon others (i.e., their customers and their employees), shouldn't creditors have the right to "pierce the corporate veil" right back?

Using the corporation as a vehicle to preach about one's religious beliefs absolutely melds the "personal shareholder" with the corporation.

Posted by: vreedlak72 | Sep 4, 2017 8:55:28 PM

Rick Hills: You wrote: "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? "

You are assuming quite a lot -- that the good or service could be bought elsewhere without much trouble. CNN interviewed florists within the 250-mile distance between Atlanta and Savannah, GA, and all of them stated that they wouldn't sell flowers for a gay wedding. So, one class of persons are required to spend quite a lot of their time and money in searching for public accommodations willing to serve them. I can imagine a gay couple in a rural red state having a great deal of difficulty in finding a baker -- and, if that baker is 200 miles away, they'll have to pay a lot more for the transportation costs as well. Say a gay married are traveling and there's only one motel with a vacancy -- but the owner opposes gay marriage and refuses to rent them a room? Many businesses, depending on context, provide crucial services (food, lodging, gas) -- it'd be quite onerous for the government to pick/choose which businesses provide crucial services (even a bakery, in a Hurricane Katrina-type situation, in which it's the only food establishment open and only "wedding" cakes in the display case are available - can they refuse to sell slices to a gay couple?) In addition, if enough businesses in an area oppose gay marriage so strongly that they refuse to sell their products/services to gay people (because they don't want them being used in their marriage -- this could be the only supermarket in a rural area, whose owner doesn't want his food to be consumed at an anniversary meal), it would effectively lead to segregation -- which is one of the reasons why anti-discrimination laws were passed to begin with. This involves a lot more than "dignity harm".

In addition, the Establishment Clause would prevent a religious "carve-out" for just one category (sexual orientation) covered by anti-discrimination law. If a Christian baker can refuse service to gay people because he doesn't believe in gay marriage, he most certainly should be able to refuse Jews, Muslims and all other non-Christians who would be consuming the cake at a religious ceremony that does not comport with the baker's. "Religion" is a category covered not only by Colorado's anti-discrimination law, but also in the federal CRA, Title II. A decision on this case most certainly will have an impact on federal law as well -- so any notion that this just be left to the states is absurd.

what no one has addressed is what would happen if a gay person (who really wants a cake from a bakery that opposes same sex marriage and is allowed to discriminate) just goes in and lies (saying it's for a heterosexual ceremony) or just doesn't bother to tell the baker or lies and says that the cake is for a birthday party -- what would the consequences be for the baker? Would the baker have a right to sue the gay person after discovering the ruse (I don't know of any law that requires a customer to disclose truthfully what he intends to do with a store's product after purchase?) If so, how would a court measure the damages? Perhaps there aren't any -- the baker got paid the contractual price for the cake. If the baker really feels that he'll go to hell and suffer eternal damnation for baking a cake for a gay couple, then wouldn't it just be safer to remove wedding cakes from the menu?

Posted by: vreedlak72 | Sep 4, 2017 3:25:44 PM

David Berstein: You wrote: "The essential problem here is raised by this hypothetical: Masterpiece agrees to bake same-sex wedding cakes, but puts up a sign that says they are doing so only because the state is requiring them do so. However, says the sign, the owners are morally opposed to same-sex marriage and would prefer not to bake such cakes. Everyone on the anti-MB side I've raised this with has agreed that this would be illegal, and that they oppose this just as much as they oppose not baking the cakes at all, because of the dignitary harm to the same-sex (and overwhelmingly gay) couples. The fact that the same objection applies when the good is being provided, albeit with public reluctance, shows that the underlying issue is not the provision of commercial services, but the expression through such expression of an ideology, and the suppression of a counter-ideology. So it really is a compelled speech case, after all."


Paragraph 72 of the Colorado's Court of Appeals' decision states: "Finally, CADA does not preclude Masterpiece from expressing
its views on same-sex marriage — including its religious opposition
to it — and the bakery remains free to disassociate itself from its
customers’ viewpoints. We recognize that section 24-34-601(2)(a) of
CADA prohibits Masterpiece from displaying or disseminating a
notice stating that it will refuse to provide its services based on a
customer’s desire to engage in same-sex marriage or indicating that
those engaging in same-sex marriage are unwelcome at the
bakery.11 However, CADA does not prevent Masterpiece from
posting a disclaimer in the store or on the Internet indicating that
the provision of its services does not constitute an endorsement or
approval of conduct protected by CADA. Masterpiece could also
post or otherwise disseminate a message indicating that CADA
requires it not to discriminate on the basis of sexual orientation and
other protected characteristics. Such a message would likely have
the effect of disassociating Masterpiece from its customers’ conduct.

Posted by: vreedlak72 | Sep 4, 2017 2:41:24 PM

Aren't you just trying to ignore the Fourteenth Amendment?

Posted by: biff | Sep 3, 2017 11:39:54 PM

"The dignitary harm raised by Masterpiece Cakeshop is not the abstract knowledge that some people oppose same-sex marriage, but the use of that opposition to deny people equal access to commercial services. Refusing to bake a cake isn't like, say, a sign put up by a home-owner declaring opposition to same-sex marriage. It's not about "suppression of a counter-ideology." "

I see this statement as disingenuous. It is true enough that Masterpiece as a distinct legal case is not about abstract knowledge but that is the ultimate goal of social liberalism. One can't just look at Mastercake in isolation from other cases which have gone before it or the political and cultural ends for which social liberals aim . Nobody debates how many angels dance on the head of a pin anymore and the cultural goal it to make a society where no one debates homosexual rights anymore.

Mastercake is important precisely because it is about abstract knowledge. It represents a legal attempt to use the courts to put the brakes on the social liberalism. To pretend that isn't so is to reject the very idea of lawfare.

Posted by: Daniel | Sep 3, 2017 4:18:41 PM

"No one has "singled out" same-sex couples; they have "singled-out" that morally object to being involved, even tangentially in a same-sex ceremony, but will do so anyway because the government is forcing them to."

People, even sometimes when their religion's doctrine is more expansive [such as divorce], have "singled out" a certain moral object. What moral object? Opposition to same sex couples getting married.

Father James Martin just wrote a book about building bridges to the LGBTQ community in part calling out some Catholics who do this. If the 'singling out' is based on faith, so be it. It's still singling out. And, the government is in some cases specifically in commercial businesses allowed to "force" them. This is to me why the commercial aspect matters so much.

JHW's comment is appreciated including as to the sign. To me that reaffirms my belief that the specific nature of the hypo makes it more blatant. If some large business had a general disclaimer, it might be okay -- it can express the point that they follow the law & general service to any number of groups some might deem a problem isn't a personal belief the groups are fine.

But, if a sign singles out a certain group, it implies something a tad different. Maybe, it's iffy either way, but it's more so here.

Posted by: Joe | Sep 3, 2017 1:43:17 PM

David, wouldn’t the restaurants that would seat blacks in the restaurant but not let them sit at the lunch counter fit that situation?

Posted by: Oshtur | Sep 3, 2017 12:10:52 PM

The dignitary harm raised by Masterpiece Cakeshop is not the abstract knowledge that some people oppose same-sex marriage, but the use of that opposition to deny people equal access to commercial services. Refusing to bake a cake isn't like, say, a sign put up by a home-owner declaring opposition to same-sex marriage. It's not about "suppression of a counter-ideology."

David Bernstein's sign hypo is trickier, but only because the sign in that case has elements of a denial of commercial service. A business that broadcasts that it only provides services for same-sex weddings reluctantly, under legal compulsion, is sending a message to potential same-sex couple customers about the kind of service they are likely to get from that business. The addition of promises of equal service hardly alters this message; customers will rationally think that this is a pro forma attempt to avoid legal liability and not a real guarantee of equal treatment.

Posted by: JHW | Sep 3, 2017 12:09:23 PM

Don't know if anyone is still following the thread, but I think we can distinguish between antidiscrimination laws based on status (I won't serve homosexuals) vs. antidscrimination laws based on objections to particular actions that are mere strongly associated with status (refusal to cater a same-sex wedding, or a bris) but where the business owner otherwise serves those with that status.

Posted by: David Bernstein | Sep 3, 2017 12:28:22 AM

David, doesn’t your compelled speech argument make all attempted discrimination of civil rights ‘compelled speech’?

I always think of US v Lee where the business owner was told that he can’t impose the limitations of his faith on others and had to collect Social Security taxes. Afterwards did the business owner start collecting them making the whole exercise a bit hypocritical, or did he fire all employees and become a one man business?

Invited customers have the same right to their own beliefs about marriage and can accept the voluntarily & publicly invitation to buy a cake to use consistent with their own beliefs. Or maybe the owner just shouldn’t be offering them to the public at all and do as Hurley & BSA with a private association making the invitation to buy only to members in good standing?

Posted by: Oshtur | Sep 1, 2017 10:31:22 PM

No one has "singled out" same-sex couples; they have "singled-out" that morally object to being involved, even tangentially in a same-sex ceremony, but will do so anyway because the government is forcing them to. One can slightly modify the hypothetical to add that the proprietor promises to do his very best for each client the law requires him to serve, so there is no question that the point of the sign is to effectively deny service by suggesting it will be done poorly by intent.

Posted by: David Bernstein | Sep 1, 2017 5:05:09 PM

I personally would not find service with such a disclaimer and no service at all "just as much" a problem. Getting something I need from someone who provides it blatantly against their will isn't great, but I get it.

Provision of commercial services is a key issue here because that very well might be what authorizes the state to require something as compared to purely private act. Saying it is not the "underlying" issue seems framing.

I would be somewhat surprised if a neutral disclaimer (we serve as the law requires, even if we don't always like it, don't assume personal beliefs) mixed with religious expression that sends a message of certain beliefs (such as garb of a religion against same sex marriage) is a problem. So, the trick seems to be the blatant nature of the sign. Akin to singling out interracial couples.

Posted by: Joe | Sep 1, 2017 4:36:32 PM

I would prefer that this case had been litigated on pure freedom of speech or association ideas rather than religion. If you run a website that accepts ads, for a fee, that are sent in by a certain time, and receive an ad for a neo-confederate group, are you obligated to run the ad? How about if you run a shirt printing shop and someone wants you to print a confederate flag on a shirt? Can you refuse? I believe strongly in free speech, but I'd not want my business to be associated with those ideas.

Posted by: Jason | Sep 1, 2017 3:49:49 PM

The essential problem here is raised by this hypothetical: Masterpiece agrees to bake same-sex wedding cakes, but puts up a sign that says they are doing so only because the state is requiring them do so. However, says the sign, the owners are morally opposed to same-sex marriage and would prefer not to bake such cakes. Everyone on the anti-MB side I've raised this with has agreed that this would be illegal, and that they oppose this just as much as they oppose not baking the cakes at all, because of the dignitary harm to the same-sex (and overwhelmingly gay) couples. The fact that the same objection applies when the good is being provided, albeit with public reluctance, shows that the underlying issue is not the provision of commercial services, but the expression through such expression of an ideology, and the suppression of a counter-ideology. So it really is a compelled speech case, after all.

Posted by: David Bernstein | Sep 1, 2017 3:39:49 PM

"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."

Given the refusal of service that would be allowed, in some places, I'm not sure if this universal equality. Devil. Details.

I have been reading about this matter for years, including on somewhat conservative leaning religious law blogs. Push comes to shove, the bottom line of many is that homosexuals can get somewhat less service than would be the case if it turned on race. Likewise, abortion is treated differently than some other belief (if treating IUDs as abortifacients was an evenhanded application, any number of things most would deem "extreme" would be up for debate).

The complication here is that there are certain universals that cannot be left to local option. We can "not care" ala Douglas about some things. Anti-discrimination law allows for some flexibility. For instance, based on political beliefs or something. But, when personal characteristics like sex, sexual orientation and race is involved, it's gets to be more tricky.

I'd add to Daniel's comments that the Colorado rule applied before same sex marriage was a right in the state. A person can have a wedding cake without a license.

Posted by: Joe | Sep 1, 2017 3:22:03 PM

By the way there is an interesting parallel here to what Lincoln was saying in his first inaugural address. Lincoln made the federalist argument that Congress didn't want to stop slavery, it only wanted to let each new state decide on its own whether slavery should be expanded. But this argument fell on deaf ears in the South and rightly so. The South was not dumb and it could see which way the cultural winds were blowing. The choice that Lincoln offered them was a choice between a certain slow death or a risky fight. It chose to fight.

Let's be real here. When Obergefell v. Hodges was decided most states had anti-gay marriage amendments in their constitutions.


What would the point have been in this context for Kennedy to have said "let the states decide?" The states had already decided and it wasn't in the direction Kennedy liked. So he had to either accept that reality or overturn it and he chose to overturn it. With this historical backdrop it is insanity for social liberals to leave decisions like religious accommodations up to the states, it is unilateral disarmament.

Posted by: Daniel | Sep 1, 2017 2:34:55 PM

The problem with the solution that Rick promotes is that it is unsatisfactory to all the players. Those who favor social liberalism want socially liberal policies to be all encompassing and all pervading: the "laboratory of the states" approach is anathema to their goals. Meanwhile, those who are socially conservative fundamentally want the same thing they just have a different constellation of values. A cynic once said that "peace is just a period of cheating between two periods of fighting" and I fear that the solution Rick promotes would amount to that--neither side would be happy and simply use the space to seek an upper hand over their opponents.

So logically the federalism argument has some merit. But functionally, as Asher intimates, it simply is not an acceptable solution at this moment in cultural time as neither side wants a compromise or an experiment. Each side wants dominance and will settle for nothing less.

Posted by: Daniel | Sep 1, 2017 2:13:34 PM

Rick -- I think you are just factually incorrect about this: "The baker alleged that he was perfecrtly willing to sell bread and cakes to gay and lesbian customers -- but he was not willing to sell a same-sex wedding cake to anyone)."

The plaintiffs were not seeking a "same sex wedding cake." They didn't ask for a cake with two grooms or a rainbow flag or a fondant sculpture of Barbra Streisand. They wanted a plain wedding cake that is exactly the same as that which Masterpiece would have sold to any straight couple. The record says this. Masterpiece would not sell it to them, simply because they were a same-sex couple.

If the plaintiffs had in fact asked for a cake that contained actual language or imagery celebrating same-sex marriage, and Masterpiece had refused to provide that but agreed to sell a plain white cake with no topper, it might be a very different case.

Posted by: JK | Sep 1, 2017 11:46:52 AM

It's not a Dale argument on which they rely (only one desultory cite to it in the opening brief)--and for good reason (no real expressive association). It's mostly a variant on Barnette/Wooley, with an intriguing suggestion at page 28 of a Tornillo/PG&E-type argument, which is, more or less, "if we are required to provide cakes celebrating SSM as a condition of providing opposite-sex-marriage cakes, we'll do neither, and thus it deters our expression of support for traditional marriages."

Posted by: Marty Lederman | Aug 31, 2017 11:25:31 PM

Marty, I agree that compelled speech a la Dale seems stronger than free exercise a la Smith. Both arguments are weak, to my mind: If I read FAIR correctly, Dale et al involve membership decisions, and customers are not members.

But I do not think that one should predict the outcome based on strict application of existing precedents, because the area of religion and speech is an unstable area: The four justices who voted to grant after a near-record number of relists must be torn about Smith and maybe itching to expand Dale. The combination of two weak arguments to make a successful "hybrid" argument is a possibility. Or perhaps they'll come up with some "expressive-products-are-sui-generis" argument to exempt bakers who produce cakes with writing, bookstores, speechwriters, etc, etc. from an obligation to particpate in some sorts of ceremonies.

I'd like to put aside these concededly important details to focus on a broader point: Given our federal system, SCOTUS would be ill-advised to weigh in here with some doctrine exquisitely tailored for exdmpting some range of businesses from some range of mandates. We have a decent mechanism for letting these dispoutes play out for a few years. This particular controversy may very well burn itself out after a bit. And cities and states may come up with some decent practical accomodations using joint ventures, faciltated referrals, and so forth to blunt the most gratuitously intrusive forms of business regulation.

Asher, on the question of state supreme courts and state constitutions, I am inclined to engage in shameless self-promotion and reply to your excellent question: Read my piece! (Pages 43-44). The short answer: State constitutional structures, including state constitutional rights subject to popular amendment and enforced by elected courts combined with state elected attorneys general, thousands of local governments and home rule protections of various sorts provide a much more sophisticated way of dealing with these disputes than the clunky mechanism of federal courts' casuistically counting precedents on the head of a pin.

Posted by: Rick Hills | Aug 31, 2017 8:33:43 PM

To your kosher example, isn't this easily distinguishable by noting that the kosher butcher doesn't sell pork to *anyone*? I think the better hypothetical would be the butcher who refuses to sell ground beef to a non-kosher client because she knows she will use the beef to make cheeseburgers. I don't have enough knowledge to say how my example applies to your argument, but I would be interested in thoughts.

Posted by: Eric | Aug 31, 2017 12:02:04 PM

The injunction at issue covers both scenarios: (1) If Masterpiece would sell a "customized" cake *without* writing/figurines/rainbows to an opposite-sex couple, it must do so for a same-sex couple, too. (2) And if the bakery would sell a cake that said “Congratulations Dave and Charlotte”--which it would--the Colorado law, and the injunction at issue, would require it to sell a cake bearing the message “Congratulations Dave and Charlie” if those were the spouses’ names. The Court might conceivably rule for the state on one scenario but not the other.

Posted by: Marty Lederman | Aug 31, 2017 11:56:14 AM

Asher, this is always brought up and always puzzling. Go to Masterpiece Cakeshop’s own web page and look at the pictures of wedding cakes - ones with little figures are few and far between and all sans the few with figures could be used by a couple of any sexes.. This is true at the Sweetcakes by Mellissa website too. Figures on cakes is very ‘last millennium’ and not the issue in either case since in neither case did the business reject the customer because of the design of their cake but because of their usage for it as stated in the depositions.

Posted by: Oshtur | Aug 31, 2017 11:50:00 AM


What makes you think that Charlie Craig and David Mullins would have been fine if they were offered the traditional different sex wedding cake? You know, the kind with a little marzipan bride and groom atop? You don't do your arguments any favors when you make unwarranted assumptions about key facts.

Posted by: Yaz | Aug 31, 2017 11:25:34 AM

I agree with Professor Lederman that this is a far closer compelled-speech case than a free-exercise case. At the least, any Justice who wants the petitioner to win and doesn't have a strong preference about the rationale will find that the path of vastly less resistance. Other than that, I think you're probably right on the merits of the various competing EC/FEC/compelled speech claims, but am not, I guess, deeply moved by your federalist argument. One thing I'm curious about is where state supreme courts fit into your vision of states doing this or that in virtue of their "Blueness" or "Redness." Do you think state supreme courts are vessels of popular democracy? Might they not take these decisions out of the voters' hands, under their state constitutions, in ways that don't reflect the population of their states, much less the future population of their states? They're not all elected courts, you know.

Posted by: Asher Steinberg | Aug 31, 2017 11:25:31 AM

Oh and pointing out the strongest case for Masterpiece Cakeshop is that one person, Jack Phillips, makes all the wedding cakes. While it is the business with the obligation to obey civil rights laws as in Star Trucking, employees can request religious exemption from any job related task - if Jack officially did that in his hat as employee rather than owner, who would then make the cake? That there is only one ‘cake maker’ increases the chance the court will find some way to exempt him and the business. In contrast Arlene’s Flowers LLC has a number of employees that have made floral arrangements and one long-term employee quit on the spot when instructed to treat customer’s illegally - I bet Eryn would have happily taken care of them from counter to cleanup. That’s why calls to merge the cases before the court are ill advised, since it would remove the strongest argument for some sort of accommodation for the business at the expense of the customers. Though that ‘accommodation’ might just be the simplest one that both businesses have used since this started - not inviting the public to buy something the owner feels they can’t sell legally. Can’t in good conscience sell wedding services to the public as the law requires then sell something else to them.

Posted by: Oshtur | Aug 31, 2017 10:55:46 AM

“but he was not willing to sell a same-séx wedding cake to anyone” No one asked for a ‘same-sex wedding cake’, just the ‘custom wedding cake’ that he freely offered to the public. A cake are as not different because of the séx of one of the couple is unexpected or different. If someone told me they didn’t make ‘same-séx wedding cakes’ I’d just reply “That’s OK, I’ll take a different séx wedding cake then” as they are the same thing. The customer wanted exactly what the business was offering for sale, wedding cakes, and just as they can buy meat from the Kosher deli and use it in unKosher ways so can the customer with their cake. These customers weren’t rejected because they didn’t want what the business sold, they were rejected because of what their beliefs allowed them to use it for. Frankly there couldn’t even be a law that tried to make it easy to religious discriminate in this way if if Church of the Lukumi Babalu Aye v. City of Hialeah is any indication. Whether you like religious sacrifice of goats or same-séx marriages, there is a religious freedom right to have them and no law can try and carve a hole in the first amendment to make discrimination against these religious usages easier.

And the standard of civli rights laws are ‘full enjoyment of any’ service the business offers to the public, not ‘some’, not ‘most’, not all but this. If they sell wedding cakes the invited customer can buy one to use consistent with their own creed, not that of the owner’s.

Posted by: Oshtur | Aug 31, 2017 10:14:20 AM

It's harder if you share the views of the writer of the opening post, sure, but the first and fourth comments suggest perhaps the opening post is making it harder than it should be.

"I agree that many are being too dismissive of the prospect that the Court (or several Justices, at least) might rule for the baker."

Respectfully, who are these people? They granted cert., so there is little reason not to take this seriously. Masterpiece Cakeshop Ltd. lost below. When a loser gets a cert. grant, there is a reasonable chance that justices thought the litigant has a strong case.

The problem many have is that they think the argument to hold for MCL is weak and that is why they hoped cert. was not granted. Many do think MCL will lose, but I think even they are concerned. They surely don't think it will be 9-0 or something.

Posted by: Joe | Aug 31, 2017 9:59:52 AM

Thanks, Marty: you took the words out of my mouth. I'm aiming for a Locke v. Davey-style regime here. Fred Gedicks , among others, has suggested that a broad set of accommodations would violate the Establishment Clause. (See, e.g., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2450658 ). Others argue that the absence of accommodations would burden the Free Exercise clause. I am inclined to say that the states ought to be able to call it either way. Let those joints play.

Posted by: Rick Hills | Aug 31, 2017 8:40:46 AM

Mark: I think Rick is going further and saying that even if a state adopts such an antidiscrimination law, it would not violate the Establishment Clause to include at least some types of religious exemptions. That is to say, he appears to be adopting a Rehnquist-like "weak FEC; weak EC" perspective, with *lots* of so-called "play in the joints."

Posted by: Marty Lederman | Aug 31, 2017 8:33:30 AM

Why go through all the constitutional fancy footwork just to arrive at the following result: States can -- if they choose -- include a ban like Colorado's in their antidiscrimination law, but they are under no constitutional duty to do so. Colorado's rule is consistent with the Constitution (on this view); so would be a contrary rule. That's federalism-friendly much more directly than your "take federalism into account in interpreting the hybrid-rights exception to Smith" approach.

Posted by: Mark Victor Tushnet | Aug 31, 2017 8:25:44 AM

Rick: I agree that many are being too dismissive of the prospect that the Court (or several Justices, at least) might rule for the baker. But do you really think that the Court will do so on free exercise or "hybrid" rights grounds? I'd be very surprised--I'm not sure there truly are plausible (or manageable) arguments on those theories (and there wouldn't be even if the Court were to overrule Smith, which it won't do: these sorts of claims were dismissed out of hand even under the Sherbert/Yoder regime).

To be sure, the Justices' strong inclinations that states *ought* to accommodate religious objectors to same-sex marriage (see the Kennedy/Roberts/Thomas opinions in Obergefell) will certainly affect their willingness to find for the baker. But the much more likely ground of decision will be some theory of compelled speech, limited, say, to artistic endeavors that result in a product that (according to the plaintiffs, and possibly the Court) "inherently" or "inevitably" send a message. Just to be clear: I don't think such a compelled speech argument is very persuasive, either, and I think it'll be very difficult for the Court to cabin such a decision (which it'll be inclined to do, if Rumsfeld v. FAIR is any indication). But the religious liberty argument is far more dubious even than that.

One other thing in response to one of your comments: We will know more today, when Masterpiece files its merits brief. But from what one can glean from the cert. papers, the baker certainly is discriminating against same-sex couples: He won't sell them the exact same cake that he'll sell to a straight couple for an analogous wedding celebration. Moreover, although the record below was, to say the least, ambiguous on this point, his lawyers now claim that he would even be willing to sell the same-sex couple a standard-design wedding cake ("one of our unique creations that are on display inside the store"), rather than a "customized" cake (regardless of whether the customized cake would contain any writing/figurines/"rainbows," etc.).

Posted by: Marty Lederman | Aug 31, 2017 7:35:13 AM

Oshtur, does it make any difference to you that the baker in Masterpiece Cakeshop is not asserting any right to discriminate against a class of people but instead a right to refuse to sell a particular type of product? (The baker alleged that he was perfecrtly willing to sell bread and cakes to gay and lesbian customers -- but he was not willing to sell a same-sex wedding cake to anyone).

It seems to me that the caselaw is not plain on whether commercial enterprises have a right to refuse to carry categories of products. Is a Christian bookstore constitutionally entitled to refuse to carry, say, Wiccan or Satanist books? or could an anti-discrmination law enforce a ban on religious discrimination to require the bookstore to carry books of every religfion? Or (to repeat my hypo) could a law requiring every butcher to carry a full panoply of meat products (promoted perhaps by the American Pork Growers Association) be enforced against a kosher butcher?

We normally expect market actors to differentiate the products they sell, so the argument that they must serve all people whose money is green just does not seem germane to the claims of these wedding vendors -- not, at least, without a bit more than Piggie Park Enterprises (or Runyon v McCrary or etc.)

Posted by: Rick Hills | Aug 31, 2017 6:00:34 AM

The issue of federalism doesn’t help since this is ultimately business owners wanting to be able to invite the public, and then have a right of religious discrimination over those members of the public that respond as customers. Yes, the cases so far have been classified locally under sexual orientation discrimination since it is the lowest common denominator, i.e. if a state doesn’t protect this then the business could hone in on ‘same-sex marriage' discrimination with this.

In reality though this is religious discrimination, a customer is being rejected because their beliefs allow them to do something the business owner's wouldn't allow them to do.

As such federalism isn't much of a solution for public commercial invitations as the religious freedom of both owner and customer are in play and it is the business that has invited the public to come and buy from them, far too late to then whip out a religious test the customer must pass to actually be able to buy what was being sold. Could there even be a law that legally allowed religious discrimination of this nature?

Businesses haven't had a right to impose the beliefs of the business owners on others in federal courts. Piggie Park Enterprises didn't have the right to exercise their religious beliefs about race "in utter disregard of the clear constitutional rights of other citizens." In United States v Lee the business didn’t have the right to effectively impose the owner’s faith on his employees, in Hobby Lobby the ruling specifically said it did not allow illegal discrimination by a business in the guise of religious practice.

All the precedence indicates that regarding public invitations a business must respect the rights of employees and customers to NOT share their beliefs and consider that before even making the offer. Trying to do it after the invitation is just too late. A Jewish deli must sell to a customer even if they know they will be keeping their purchase in the same refrigerator as their dairy, an Amish business owner still must collect social security taxes for employees or just not have them, a racist BBQ restaurant owner must serve people of all races even if his beliefs say they shouldn't be mixing, a Southern Baptist florist shop owner must still sell to the Lutheran customer who is going to use their purchase for a wedding completely consistent with their beliefs even if it is for a couple of the same-sex.

Is there a solution? Sure, same one that New Jersey v Boy Scouts of America found - freedom of association. Instead of inviting the public, i.e everyone, run a private membership business with criteria that allows only just the ‘right’ people to join and make just that membership the invitation of sale.

But a state by state relaxation of the first amendment, a business can invite everyone and then apply a religious test the customer must pass to actually buy the advertised product or service? I don't see how that could even be constitutional.

Posted by: Oshtur | Aug 31, 2017 5:39:21 AM

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