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Monday, June 04, 2018

SCOTUS Term: Does Masterpiece Cakeshop’s Easy Inference of Hostile Intent Overturn Employment Division v Smith?

From a liberal’s perspective, Justice Kennedy’s Lukumi “hostility” theory in Masterpiece Cakeshop seems like the ideal opinion: It seems too narrowly fact-based to endanger anti-discrimination laws yet almost custom-tailored (or -baked?) to undermine President Trump’s travel ban. SCOTUS inferred hostility to religion from a statement by a single member of the Colorado Human Rights Commission that “it is one of the most despicable pieces of rhetoric that people can use — to use their religion to hurt others.” Perhaps future legislators and administrators will be able to dodge Masterpiece Cakeshop simply by keeping their mouthes shut about religion. Moreover, if someone on a law-making body makes an ill-advised comment about religious reasons being especially despicable, then Masterpiece Cakeshop seems to provide an easy escape, by emphasizing that none of the Colorado commissioners “disavowed” their colleague’s errant statement: Policymakers merely need to sensitize the record with emphatic disavowal. While the opinion seems easy to sidestep in the future, it also seems exquisitely well-aimed, as Leah Litman notes, at Trump’s Travel Ban and his defiant refusal to disavow any of his past anti-Muslim statements suggesting Lukumi-style hostility to Islam rather than terrorism.

So what’s not to like —- assuming, that is, that you, like me, dislike the Travel Ban and like federalism on religious matters?

And yet I wonder if Masterpiece Cakeshop might have longer legs than appearances suggest. In particular, the easy inference of hostility to religion from a single commissioner’s remark and a difference in treatment between different types of cases strike me as oddly inconsistent with Mt. Healthy v. Doyle and Employment Division v. Smith. After the jump, some thoughts on why Matsrepiece Cakeshop might pose more of a threat to anti-discirmination law than at first meets the eye.

First, what ever happened to the Mt. Healthy School District v. Doyle framework for dealing with evidence of bad intent? Ordinarily, if a member of a multi-member body makes a statement suggesting an unconstitutional purpose, then the proper remedy is to shift the burden of proof to that multi-member body to prove that the member’s errant statement was not the cause of the decision. Why did not the SCOTUS give the Colorado Human Rights Commission a chance to “disavow” their colleague’s statement on remand?

Second, Justice Kennedy’s inferring hostility to religious reasons from the state’s refusal to forbid action motivated by analogous secular reasons suggests a very broad definition of “anti-religious discrimination” — one going far beyond Lukumi and arguably threatening Employment Division v. Smith.

Aside from that “despicable” comment, Justice Kennedy inferred hostility to Jack Phillips’ religion from “the difference in treatment between Phillips’ case and other cases of bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.” The Commission allowed those other bakers to refuse to write anti-gay messages on cakes, because the Commission deemed the bakers’ objections to be merely aversion to the messages’ “offensiveness” that was not specifically directed against customers’ religious motivations. By contrast, the Commission rejected Jack Phillips’ analogous argument that he was not hostile to gay and lesbian customers as such but only to same-sex wedding ceremonies. By being less deferential to the latter religious arguments than the former secular arguments, the Commission, according to SCOTUS, showed bias against religion.

Such an inference of hostile intent from an apparent disparate treatment in different types of cases might be a sensible view of the Free Exercise clause. (Sager and Eisgruber’s “Equal Liberty” theory, for instance, urged such an approach). This is not, however, the approach that the Court has taken in cases like Employment Division v Smith. Moreover, there is a reason why apparent disparities in treatment are not automatically bases for inferring hostility in motivation: It might be that the disparities between two types of cases are more apparent than real, because the cases are not truly analogous to each other. For instance, it might be perfectly plausible, given the facts, for the Commission to infer that bakers’ offense at anti-gay messages had nothing to do with the religious motivation of such messages and yet also infer that Jack Phillips’ objections to same-sex wedding ceremonies cannot be disentangled from an underlying disapproval of same-sex sexual orientation.

Masterpiece Cakeshop, in short, seems to adopt a new and much more aggressive approach to inferring hostility to religion from mere “difference in treatment” than the Court’s approach in Employment Division v. Smith. by inferring anti-religious animus from any failure to extend to religious objections the benefits of exemptions for arguably “analogous” non-religious activity. One can imagine that this new and more aggressive approach to inferring “hostility” could be deployed against anti-discrimination laws. Imagine, for instance, that an anti-discrimination law grants exemptions to businesses on some secular basis like size or number of employees. Citing Masterpiece Cakeshop, it would be easy for a court to argue that failure to grant an “analogous” exemption for religiously motivated employers is a “difference in treatment” suggesting hostility to religion.

Of course, Masterpiece Cakeshop also heavily relies on specific anti-religious remarks by actual lawmakers. One might, therefore, distinguish future cases that lack such specific legislative history. As smoking guns go, however, the Commissioner’s “despicable” comment did not emit all that much smoke. The Commissioner did not say, after all, that religious motivations were, in general, despicable. Instead, the Commissioner said that it was despicable “to use their religion to hurt others” through discrimination. It is not obvious that this statement shows much animus against religion at all: It more naturally suggests animus towards discrimination, whatever the motivation. Presumably, the same speaker would think it equally despicable to use some secular ideology — say, a Stalinist objection to bourgeois sexual decadence — to discriminate against LGBT people. That the speaker only mentioned religious motivations seem best explained by context: religious exemptions, not secular ones, were the topic under discussion. Such comments rejecting religious exemptions will likely crop up whenever such exemptions are debated and rejected in agencies or legislatures. I suppose that well-counseled lawmakers will steer clear of the “despicable” word, but it seems silly to think that a different result should follow from a milder adjective (e.g., “ill-advised,” “bad idea,” “unjust,” etc.)

In short, Masterpiece Cakeshop might overturn more than Trump’s Travel Ban: It might also mark the fraying of Smith and the overturning of a lot of laws that took shelter under Smith’s deferential attitude towards inferences about governmental purpose.

Posted by Rick Hills on June 4, 2018 at 04:43 PM | Permalink


This sure seems to be a Major first amendment case, firmly inviting a dissection of "free exercise" and planting those sections of exercise related to expression under the first amendment with similar protections as political speech?

It gives some guidance on things that might be considered to be expression (degree of customization and degrees of editorial of content ? ) and firmly invites that expression includes some elements of participation ( perhaps placing of decorations or attending?).

It affirms that the quality of ideas is not what allows or does not allow political speech and demands that religious expression be held no worse or better than a political justification?

At the same time, it firmly supports past public accommodation laws as worthy limitations that religion cannot be used as an excuse... however demands a consistency of what activities are considered expression without regard to content of the expression.

In an even more interesting way though, does the case not set some groundwork for future limiting of 1st amendment by context ? Flat out banning a sign "we will not sell cakes [protected group] on a doctrine threaded throughout on an 'expectation of dignity" (and also a limit on where an expectation of dignity should end - almost a demand that people not be offended by denial of a priest to conduct a ceremony).

Compelled speech, like compelled political action in the of site Gambling cases, seems to also be a thread in here.

Certainly some of this same theme will continue into however the California reproductive counseling cases come down, to some degree or another drawing more lines in when where and what speech can be compelled or restricted and where exercise of religion is "expression" and where it cannot be an excuse not to abide neutral laws.

I think that the "hostility" in terms of the "be nice" interpretation is way overplayed by many and that was meant more as "unequally and insufficiently open to considerations of expression", than rudely exaggerated. But at the same time, the 'hostile' plays with the theme of the cusp of speech and a preparation for addressing "hate speech" limitations and expectations as they are increasingly raised in terms of universities with public funding or platforms that might meet a common carrier definition in some-regards.

To me they are trying to get out ahead on a number of expression issues they will address in the future and see as explosive and divisive societal issues that will increasingly be laid at their feet to referee.

Posted by: Tom | Jun 13, 2018 4:05:29 PM

^ The better question is should a Muslim baker be forced to decorate a cake in the image of Mohammed.

Posted by: YesterdayIKilledAMammoth | Jun 6, 2018 12:02:20 PM

Let's say a Muslim Palestinian cakeshop served Jewish customers (just as Jack Philips served gay customers), but wouldn't bake a cake for Passover because the IDF destroyed his parents home in Gaza (just as Jack wouldn't bake cakes that celebrated gay couples because his religion opposed gay marriages).

Is the Muslim Palestinian discriminating against Jews or simply not taking part in celebrating Judaism?
I would say that Jack isn't discriminating against gays, he's refusing to take part in celebrating homosexual couples.

It doesn't matter whether the cake has any gay-wedding words or decorations on it, it's what the cake is for that he objects to; just as in our example, it is what the cake is for (the Passover celebration) that the baker opposes.

Let's say a black cakeshop serves policeman, but doesn't bake cakes for police retirement parties because they don't want to take part in celebrating police practices. . . .

Posted by: Matilda Sweetheart | Jun 5, 2018 2:00:44 PM

At the risk of being far too agreeable myself I'll agree with everything Rick says in his comment directly above. The one thing I would clarify is that there is a respect in which my view is different from his. My view is that even assuming for the sake of argument that the Commission refused to take Jacks pretextual arguments seriously and thus inadequately failed to distinguish them on the record, three cases isn't a large enough sample size to infer hostile intent. When dealing with a generic EEO disparate treatment/impact complaint one is typically looking at sample sizes in the hundreds or thousands: the claim is something like "you are treating all of us black people different than all those white people" and "all of black people" always amounts to more than just three people. Occasionally one finds few vs many situations but always that is because the organizations is being explicitly discriminatory such has where the supervisor said, "I promoted John over Jill because Jill is woman." There is no such explicitness here.

So the me the inferential leap that Kennedy makes is just to large of a leap, assuming that all for his facts and intuitions are correct.

Posted by: James | Jun 5, 2018 1:07:11 PM

Smith was about being able to do an illegal activity (smoke marijuana) for religious reasons.

Masterpiece Cakeshop wasn't about doing an illegal activity. Discrimination isn't illegal, see the affirmative-action cases. You are allowed to take people's characteristics into account to further legitimate state interests. Well freedom-of-religion is as much a legitimate state interest as college diversity, since freedom-of-religion is specifically enumerated in the first eight amendments.

Now you could say that the bible not only condemns homosexuality, but it also celebrates slavery, so isn't it OK to have slavery for religious reasons?
But I don't think there's a commandment requiring slavery to be legal in the same way there's a commandment to outlaw/punish homosexuality.

Posted by: Deuteronomy, myself and Irene | Jun 5, 2018 10:34:38 AM

At the risk of seeming like I am just too darn agreeable, I think that I agree with Asher’s, James’ and Mark’s views.

1. As James and Mark point out, this is not your ordinary inference of state “hostility” based on discrimination against protected reasons. Sure, the Commission gave short shrift to William Jack’s three claims of anti-religious discrimination — but that’s because the three respondents in the “Jack” cases had an obviously religion-neutral reason for declining to serve Jack: Those three bakers just did not like anti-gay messages, regardless of their religious or secular motivation. Such vendor hostility does not constitute an excluded reason under CO law, period. By contrast, the Commission took Phillips’ objection to same-sex ceremonies to be tantamount to hostility to LGBT customers, a criterion that is plainly an excluded reason (again, period). So on its face, the Commission acted neutrally with respect to religious reasons.

By looking behind these religiously neutral reasons, SCOTUS seemed to adopt a kind of “Smith with teeth” test. It is not enough that a state agency cite plausibly religiously neutral reasons for their decisions: That agency must also apply those reasons in a “respectful” way, not being too casual with arguments that such official reasons are pretextual. One could even give this new “Smith with teeth” test a Kennedy-esque name: the “neutral and respectful” test, a phrase that Kennedy uses twice. (Cf. “congruent and proportional” in Boerne). Under this ”neutral and respectful” test, if some claimant argues that an official reason is pretextual, then the state agency must be equally careful to examine evidence of pretext across different cases. The agency cannot peremptorily say to people like Phillips, “we reject your argument that we cut the three ‘Jack’ bakers slack in assessing the neutrality of their reasons to refuse service: We didn’t, because their actions were religiously neutral but your action was not LGBT-neutral.” Instead, the agency has to give detailed explanations for why they found pretext in one case but not inanother. That obviously is not Smith.

2. But Asher is 100% correct that lower courts could treat Masterpiece Cakeshop as a fact-specific finding by SCOTUS that the CO Commission happened, on this particular factual record, to be hostile to religiously motivated “pretext” arguments, taking the couple’s “pretext” argument against Phillips much more seriously than the analogous “pretext” argument made by William Jack. This would be the same old Lukumi test, just applied to case-specific evidence of anti-religious bias.

That’s the beauty of what Mark calls Kennedy’s “gauzy thinking.” It preserves the SCOTUS’s options. This mode of covert heightened scrutiny is Classic AMK: 1). There’s a general phrase (“neutral AND RESPECTFUL” that could be the basis for heightened scrutiny of FEC claims, or not combined with 2) SCOTUS’s application of that general phrase that, viewed abstractly, does not automatically indicate such heightened scrutiny but that obviously involves heightened scrutiny when one digs into the weeds of the case. Like Boerne, Lawrence v. Texas and Obergefell also involved a similar strategy of applying heightened scrutiny without saying so, using gauzy doctrinal rhetoric as cover.

Yes, Asher, absolutely: Lower courts COULD decline the SCOTUS’s invitation to scrutinize Lukumi “pretext” claims carefully, or they could accept the invitation: All options are left open by Masterpiece Cakeshop’s vague phrases but specific implementation of those phrases. My only point is that the door is now ajar to allow lower courts to engage in more “fact-specific” invalidations of apparently religion-neutral state decisions under the cover of Masterpiece Bakeshop’s odd interpretation of Lukumi and Smith. (BTW another doctrinal analogy is Cleburne — aka, Equal Protection “rational basis with teeth,” where the “teeth” are hidden in the actual application of a gauzy phrase — “mere negative attitudes,” “private biases,” or “irrational prejudice” — to specific facts).

Posted by: Rick Hills | Jun 4, 2018 9:41:29 PM

"Such an inference of hostile intent from an apparent disparate treatment in different types of cases might be a sensible view of the Free Exercise clause . . . This is not, however, the approach that the Court has taken in cases like Employment Division v Smith."

Did Smith involve any disparate treatment, or a claim of one? I'll stipulate that the argument for disparate treatment here is mostly pretty weak. But formally, I think the reasoning here goes like this. A state may enact a neutral and generally applicable anti-discrimination law; this decision doesn't entail any right to an exception from one. However, in deciding what acts violate that law, a state has to interpret that law under neutral and generally applicable rules of decision that do not distinguish between religion-motivated discrimination and religious discrimination. What the Court claims is missing from the Colorado commission's cases on cake baking is a neutral rule of decision, like the very plausible one suggested in Kagan's concurring opinion. Instead, arguments are made against the religious cake baker that could be made just as well against the anti-religious cake bakers, but aren't, while arguments are made in favor of the anti-religious cake bakers that could be made just in well in favor of the religious cake baker, but aren't. And when the state courts attempt to distinguish these cases, they say that the biblical quotation "homosexuality is a detestable sin," i.e., the very belief that the religious cake baker has, is offensive, but celebrating same-sex marriage is not. That, on its face, discriminates against the religious cake baker's religious beliefs, at least when read in the uncharitable way the Court reads it.

Now, while I find it utterly unexceptionable to say that the state can't interpret its anti-discrimination law in a religiously discriminatory way, I agree with you that the Court's inferences from disparities in the Commission's reasoning are quite wobbly. But I wonder how much lower courts will read an aggressive approach to sussing out discrimination from the Court's and Kagan's selective presentation of the Commission's decisions; taken on its face, it isn't obviously that aggressive, and one would probably have to read the Commission's decisions to tell how aggressive it is.

As for the travel ban, I don't think this decision says anything about the travel ban. The Court is reacting to (a) disparate treatment between the religious and non-religious that, purportedly, no articulated neutral principle in the Commission's and state courts' decisions explain, (b) rules in the Commission's actual decisions that change depending on the religious beliefs of the person whose case they're deciding, and (c) statements that suggest animus in the Commission's hearings in Phillips' case. The analogy to that kind of thing, in the travel ban case, would be (a) a failure to explain in neutral terms in the EO why certain countries were targeted and not others, and (b) statements that suggested animus in the EO or in official documentation of the inter-agency process that led to it.

What I gather we actually see in the travel ban case is a neutral rule about screening that generates the list of countries in the EO, and a total absence, in the EO, of statements indicating animus. What the challengers are relying on are statements that the relevant official made outside the context of the decision itself, on Twitter, in interviews, or on the campaign trail, most if not all of which don't specifically regard the EO in question, some of which specifically regard a predecessor campaign proposal that looks nothing like the EO. I think that even Doug Laycock would agree that it would be absolutely nuts to hold that the Commission violated the Free Exercise Clause if its decision looked perfectly neutral on paper, distinguished between Phillips' case and the others on Kagan's proposed grounds, but the commissioners had revealed themselves to be anti-religious bigots in public remarks, primarily in remarks they made before taking office that didn't concern this case, a few of which described a plan they never put into action to ban all religiously motivated denials of service (which is reasonably analogous in scope and degree of difference from what the Commission ultimately did to the Muslim ban and its degree of difference from the actual EO).

Posted by: Asher Steinberg | Jun 4, 2018 8:23:27 PM

The Masterpiece Court's decision follows straightforwardly from Godwin's Law-- or, at least, the version of that law that says that whoever first brings up Hitler in an argument loses the argument. One of Colorado's adjudicators brought up the Holocaust. So, Colorado lost.

Posted by: The Corsican | Jun 4, 2018 8:19:41 PM

My view, more or less consistent with your post, is here: https://balkin.blogspot.com/2018/06/a-masterpiece-cakeshop-puzzle.html

Posted by: Mark Tushnet | Jun 4, 2018 5:58:17 PM


I agree. I can't escape the fact that this decision seems more driven by a lame attempt to "keep the peace" than any underlying conceptual rational. Regardless of how I feel about the issue of SSM there just doesn't seem enough oomph in the facts of this case to justify the judgment of hostile intent. Forget about Smith for a moment. Can can anyone point to a single case anywhere in EEO law where the court inferred disparate treatment or impact from just three cases?


William Jacks brief identifies just three...three...cases where the Civil Right Commission supposedly discriminated against religious requests. It is shocking to me just how thin a reed the court hangs its hostile intent (or lack of neutrality if one prefers) judgment on.

Posted by: James | Jun 4, 2018 5:21:08 PM

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