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.