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Monday, June 04, 2018

SCOTUS Term: Free Exercise "Happy talk" (Two Updates)

The Court decided Masterpiece Cake on the narrowest, least generally applicable grounds it could find--that some Colorado Civil Rights Commissioners made anti-religion statements in deciding the case, thereby failing to decide the case with the "religious neutrality that the Constitution requires"  or the "neutral and respectful considerations to which the baker was entitled. But the Court did not recognize Free-Exercise exception to public-accommodation laws and seemed to accept that religious beliefs do not provide an out to public-accommodations laws. That is, the problem was not the decision the Commission made (and the state courts affirmed), but the statements made in the course of making that decision.

• The majority's basic rationale is incoherent. It criticizes the "lack of due consideration for Phillips' free exercise rights and the dilemma he faced" and the failure to consider his religious objection "with the neutrality" required by the First Amendment. But the point of Smith is that there is no dilemma. Religious preferences, no matter how deeply held, yield to laws of general applicability. The required neutrality is in the law's application--the law cannot treat conduct performed for religious reasons less favorably than identical conduct performed for non-religious reasons. The majority here imposes some sort of neutrality of consideration. But what it really imposes is a "happy-talk" requirement--officials must speak respectfully and kindly and happily about religion religious objections to neutral laws, even while rejecting those objections. Because allowing those objections would eviscerate public accommodations laws.

• I have not seen this argued anywhere, but why wasn't this case moot? I believe I read that Phillips closed his bakery. So the sanctions imposed on him--cease-and-desist discriminating, comprehensive staff training, and quarterly compliance reports--no longer have any effect. [Update: In light of comments and further thought, the mootness point seems clear--the possibility of reopening the business renders the case not moot. I was incorrectly recalling a case in which the Court held that closing a nude bar did not render moot the challenge to an anti-nude-dancing ordinance. Apologies for raising an unnecessary issue]

[Second Update: So what happens next. The case came to SCOTUS on direct review from the state court, which was reviewing the Commission decision. The state court of appeals decision affirming the commission is reversed and so, therefore, is the Commission decision and order. One commentator to the Civ Pro listserv described this as an "implicit remand"--the Colorado court now can remand to the Commission to do the case over in a "neutral" manner. Then the question is whether the Commission wants to pursue the case anew, which may get us back into the question of whether Phillips is still running the bakery and/or whether he intends to do so in the future.

Posted by Howard Wasserman on June 4, 2018 at 01:18 PM in 2018 End of Term, Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


I have found an article from the Denver Post that he wants to get back into the "wedding cake" business but (though it's not totally clear) doesn't sound like he closed stop completely. Sounds like he just doesn't sell wedding cakes. Thus, the website says "Masterpiece Cakeshop is not currently accepting requests to create custom wedding cakes. Please check back in the future."

Posted by: Joe | Jun 6, 2018 4:56:40 PM

Nice try, Paul. Next you'll tell me that the word "abortion" isn't in the fourteenth amendment, or that the word "self-defense" isn't in the second amendment.

We all know that having anal sex is safer than falsely shouting "fire" in a crowded theater.

Posted by: Gamma Ray | Jun 6, 2018 1:56:30 AM

Perhaps my research skills are rusty--that's definitely possible!--but I can't find any trace of Justice Kennedy having said that in any judicial opinion. Indeed, I can't find any relevant results for a search of state and federal judicial databases for the word "aids" in the same sentence as "clear and present danger." Nor can I find anything relevant in a search of the "secondary sources" or "news" databases on Westlaw. Could you identify the source of the quotation given above?

Posted by: Paul Horwitz | Jun 5, 2018 3:29:15 PM

"And you can't rely on due process when the more-specific rights of the First Amendment are in play."

According to Lawrence v. Texas you can do anything you want, even if it could transmit AIDS, like anal sex.

According to Kennedy, "The possible transmission of AIDS does not present a clear and present danger under the first amendment."

Posted by: Pol | Jun 5, 2018 10:58:35 AM

I remain ambivalent on the free speech angle. I think there is a point at which the expressive rights are rather indeterminable. Either the Court finds a way to hold its tongues (as in this case), categorically rejects what can be speech, or relentlessly broadens a right that crowds out traditionally legitimate government action.

The idea that an artistic work for hire is simply the expression of the person requesting it doesn't sound right. The 'just a cake' argument isn't very convincing. What would happen if a caricaturist sitting in the mall refused to draw a same-sex couple? It's not high art and it's very commercial. I don't think edibility is a proper dividing line. And when I look at a caricature, perhaps even at a wedding as decoration, my impression is not that it was a communication by the drawer but a commercial and stylized representation of the couple. Sure, just as with a cake, I can recognize the particular choices made by the artist, but the answer to that seems to be 'so what.'Could a caricaturist be compelled to draw same-sex couples?

Posted by: CrispyBacon | Jun 5, 2018 10:30:33 AM

As a matter of Free Exercise, the customer wins. As a matter of free speech, the customer wins. Whatever expression there is to placing a cake-topper, it is not the baker's expression, but the couple's.

Posted by: Howard Wasserman | Jun 5, 2018 8:20:18 AM

Howard, what do you think the right outcome should be in a case where a male-male cake topper was requested?

Posted by: BA | Jun 4, 2018 8:45:09 PM


It will create a happy talk requirement whether the court desired to do that or not. Who wants to take the risk that impolite or loose talk might doom one's official decision? No one. The risk isn't worth the reward. Kennedy's reference to the remarks made by one commissioner may be both cumulative and dicta but that doesn't mean it will go unheeded.


One of my favorite Ogden Nash quotes is,

"Sometimes with secret pride I sigh,
To think how tolerant am I;
Then wonder which is really mine:
Tolerance, or a rubber spine?"

People are going to debate whether Kennedy showed tolerance or a rubber spine in this case for years.

Posted by: James | Jun 4, 2018 4:39:48 PM

The action/inaction distinction does not have any support in the First Amendment. And you can't rely on due process when the more-specific rights of the First Amendment are in play.

The constitutional right to freedom of religion has been interpreted to not provide for an opt-out from neutral statutes of general applicability, so long as there is a rational basis behind that statute. So it should not have mattered what the commissioners said--the Free Exercise Clause did not give Phillips the right to avoid obligations under the civil rights ordinance, even if based on deeply held religious beliefs.

The Halloween cake is different because Phillips won't sell Halloween cakes to anyone, so there is no discrimination. He will sell wedding cakes to some people and not others--and the difference is the sexual orientation of the people to whom he won't sell the cakes. And "hey you can buy this cake off the shelf for a wedding four weeks from now" does not avoid a charge of differential treatment.

Posted by: Howard Wasserman | Jun 4, 2018 3:34:09 PM

In regards to the "happy talk:" One deciding a case has an ultimate duty to be impartial. The Colorado Civil Rights Commissioners, biased by the very nature of their position, should not the power to decide cases if they have not the strength of character to check their personal feelings at the door, and maintain the neutrality and open-mindedness honest judgement requires.

So no, not "happy talk." When you go before a commissioner, a judge, and they trash talk and basically curses the very basis of everything you and / or your client believes / lives for / is fighting for, and you have only just gotten a bit into your case... maybe you would like some... happy talk?

Posted by: Kathy Ann | Jun 4, 2018 3:25:45 PM

What became lost was the original grounds Phillips' lawyers' argued his case opun, which encompassed his 1st Amendment Rights to not make a one of a kind creation (cake) with a decoration of two men for a same-sex wedding celebration, because of his deeply held Christian beliefs-- beliefs that are protected by the Constitution.

A question I have struggled with is how can a new, yet rightful, anti-discrimination law of persons according to sexual orientation take precedence over our Constitutional Right to freedom of religion? Well, it just does not! The two must co-exist in our country!

Mr Phillips did not refuse service to gays. He even offered the engaged couple who sued him any prepared cake in his shop. He refused to create a special one for the wedding as to not go against his God. He sold to anyone, everyday-- regardless of orientation.

And it wasn't just same-sex wedding cakes he refused. He did not make Halloween cakes, cakes with lewd themes- such as bachelorette parties or bachelor parties, etc. All of which he felt offensive to God.

Posted by: Kathy Ann | Jun 4, 2018 2:50:13 PM

I think there's a 3-2-4 split on what to do in the case of "happy talk." 3 Justices say there's still a problem as long as Phillips is treated differently than the (protected) bakers in the Jack cases. 4 Justices say there isn't. And 2 Justices (Kennedy and Roberts) stay quiet on the issue.

Posted by: Chris Lund | Jun 4, 2018 2:21:10 PM

I think Smith was about wanting to do something (recreationally use drugs), while Masterpiece was about wanting to abstain from doing something (not baking cakes for an occasion).

The core of the first amendment is not about giving people additional liberties (that's what the substantive due process clause is for), but about allowing people to not have to do things--right to remain silent, right to be an atheist, etc.

Instead of arguing that the free exercise clause gave him a right to use drugs, he should've used the Lawrence/due-process clause. Since drugs are less dangerous than anal sex (they transmit STDs less often), he could've argued that drug-use should also be protected--since it creates less of a clear and present danger of STD transmission.

Posted by: Dudley Dull | Jun 4, 2018 2:06:00 PM

I checked and the website for the cakeshop is still up but the number provided was unable to be reached when I tried calling.


At the end of April 2018, the owner wrote an op-ed that does not suggest he closed shop: https://www.sltrib.com/opinion/commentary/2018/04/26/commentary-im-the-masterpiece-cakeshop-baker-will-the-supreme-court-uphold-my-freedom/

"Jack Phillips is the owner of Masterpiece Cakeshop in Lakewood, Colorado."

Do you have a cite that says he closed?

Posted by: Joe | Jun 4, 2018 1:44:59 PM

Here's a possible reason why the case isn't moot. Even if Phillips closed his bakery, the case would not be moot if he had the intention to reopen his bakery if the cease and desist order were overturned. See Gratz v. Bollinger, 539 U.S. 244 (2003) (student who expressed intent to apply as transfer applicant in the future had standing to sue over college's use of race in admissions, even if he had already been rejected as an applicant for freshman admissions); Committee for Effective Cellular Rules v. FCC, 53 F.3d 1309 (D.C. Cir. 1995) (regulated entity that stopped bidding due to agency's policy change nevertheless had standing where it claimed it would start bidding again if the challenged policy were withdrawn).

Posted by: Hans | Jun 4, 2018 1:44:12 PM

I think it is very easy to discount what the Court did here.

The opinion firmly establishes that religious belief can manifest in commerce and that arguments to the contrary (at least in an adjudicatory setting) are grounds for finding a violation. It has a certain Marbury v. Madison character to it.

Notably, the opinion framed the issue of religious protection in fact-bound-terms, implicitly dismissing the idea that there is a principled dividing line between clergy and other religious persons (p. 12 citing Obergefell). The Court, assuming the obviousness, wrote that refusal by clergy to officiate a wedding is "an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth" (p.13). The Court continued to address the protection due the baker. The important thing there is that the juxtaposition was less a contrast than stating that the same principles apply and that care must be taken in evaluating the facts.

This is directly contrary to what many (usually liberal) scholars and many in the public debate have insisted. There has been a general belief that Obergefell's restraint in not criticizing religious views against homosexuality was more tact than principle. This case answers, quite resolutely, that that wasn't the case.

Going forward, adjudicators are required to show respect and neutrality toward religious beliefs that are supposed (by many) to be incompatible with civil society. That can send a powerful message and gives religious observers a shield if not a sword if the government wishes to quash manifestations of their religious beliefs.

Posted by: CrispyBacon | Jun 4, 2018 1:43:57 PM

I don't think they merely impose a happy-talk requirement. The Court's problem, as Kagan says a little more clearly than Kennedy, isn't the lack of happy talk, but rather inconsistent reasoning between the state's disposition of religious-discrimination claims and sexual-orientation-discrimination claims. Rejecting Phillips' speech defense on the ground that his cakes wouldn't be understood as his speech, but apparently finding that cake bakers who don't want to bake cakes with religious messages they don't like would be understood as endorsing those messages, does look odd.

Posted by: Asher Steinberg | Jun 4, 2018 1:36:01 PM

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