Onward to the Supremes

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The Supreme Court agreed to hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, about “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”



Not be be overlooked was the Supreme Court ruling in Paven v. Smith, summarily reversing the Arkansas Supreme Court, which had declined to order an amended birth certificate issued to a lesbian couple on the same terms on which the state would issue such a certificate for a child born via donor reproduction to an opposite-sex couple. Olson writes:

Notably, Gorsuch in his dissent took a legal technician’s cool tone that diverged sharply from what one might have expected from the late Justice Scalia: he refrained from zingers at the majority’s expense, stayed far away from culture-war implications, and emphasized that the dispute that might have been aired was over how best to implement Obergefell, not whether to retreat from it. Some voices on the traditionalist sidelines have urged the Court’s conservative wing to wage rhetorical war against Obergefell and Windsor so as to set up an eventual overruling of those decisions. But not a single justice took that approach today.

A new Pew survey, incidentally, confirms that opposition to legal recognition of same-sex marriage has extended its historic decline, and is now in a minority even among Republicans.

8 Comments for “Onward to the Supremes”

  1. posted by Tom Scharbach on

    It’s not a “challenge to gay weddings,” its a matter of compelling creative services and expression that violate religious belief.

    We’ll see next fall how the case is briefed, argued in orals, and (most likely toward the end of the year or shortly thereafter) decided.

    If the case is treated as a restraint on free exercise of religion, it will run head on into Employment Division v. Smith and Borne v. Flores. I have a hard time seeing how the Court will decide the case in favor of the Colorado baker without either distinguishing, limiting or overturning Employment Division (“substantial burden”, “rational basis”) and Justice Kennedy’s strong opinion in Boerne, either by (a) lessening the requirement of “substantial burden” to a lower standard, or (b) imposing a higher requirement than the “rational basis” test on laws of general application. Either result will be a major change in constitutional law, and I think that the Court will be reluctant to do so.

    If, on the other hand, the case is treated as a restraint on freedom of speech, neither Employment Division nor Boerne will stand in the way of a decision in favor of the baker. The question in that instance will be whether the “creative services and expression” involved in baking/decorating a cake falls within the scope of protected free speech. The “expressive services” argument seems like a stretch to me, but I might be persuaded otherwise after I’ve read the briefs and listened to the oral arguments. To my mind, an “expressive services” decision will open a legal pandora’s box — if decorating a cake is an “expressive service” protected as free speech, is baking a plain, undecorated cake similarly “expressive” and protected?

    The most interesting aspect of the case (in my view, anyway) is that the two constitutional issues (free exercise and free speech) have been conflated by the public discussions I’ve seen from non-lawyers. If the two theories are similarly conflated in the briefs, arguments and (most importantly) the decision, the Court will have created a new legal animal, an amalgam that is sui generis as far as I know. I wonder what rule might be derived from such an amalgam — businesses can be required to provide goods (e.g. unprinted napkins or an undecorated cake) and services (e.g. a reception hall) by public accommodation laws, but cannot be required to provide goods and services is the goods and/or services are somehow “expressive” in nature (e.g. a printed napkin or decorated cake). A decision along those lines, it seems to me, is almost certainly to be incoherent, creating a standard without defined boundaries.

    Whatever the outcome and whatever the constitutional theory, the Court cannot, it seems to me, differentiate between religious objections to same-sex marriage and any other religious objections to public accommodations laws, not to mention other laws of general application. The Court (or so it says, anyway, Yoder notwithstanding) has held that laws of general application are not subject to the “compelling state interest” and “least restrictive means” tests that is applied when a law directly prohibits, stifles or seriously interferes with religious exercise.

    Regarding the religious freedom argument, I point you to these words from Justice Kennedy in the Boerne decision:

    The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. See Smith, 494 U.S., at 887 (“What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?”); id., at 907 (“The distinction between questions of centrality and questions of sincerity and burden is admittedly fine …”) (O’Connor, J., concurring in judgment). Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.

    If “compelling interest really means what it says … many laws will not meet the test … . [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Id., at 888. Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

    The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 U.S. 229, 241 (1976). RFRA’s substantial burden test, however, is not even a discriminatory effects or disparate impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement–a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify–which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.

    The Court has taken on a difficult, complicated and dangerous case. Speculation will be rife in coming months, but the decision in Masterpiece Cakeshop is just the beginning of a long, complicated series of legal challenges intended to limit and eventually overturn Obergefell. With both Justices Kennedy and Ginsburg nearing the end of their days on the Court, the more that can get decided this Term or next, the better.

  2. posted by Tom Scharbach on

    “Notably, Gorsuch in his dissent took a legal technician’s cool tone that diverged sharply from what one might have expected from the late Justice Scalia: he refrained from zingers at the majority’s expense, stayed far away from culture-war implications, and emphasized that the dispute that might have been aired was over how best to implement Obergefell, not whether to retreat from it. Some voices on the traditionalist sidelines have urged the Court’s conservative wing to wage rhetorical war against Obergefell and Windsor so as to set up an eventual overruling of those decisions. But not a single justice took that approach today.”

    The lack of Scalian histronics aside, the dissenting opinion, authored by Justice Gorsuch and joined by Justices Alito and Thomas, presaged a conclusion:

    “The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate. Before the state supreme court, the state argued that rational reasons exist for a biology-based birth registration regime, reasons that in no way offend Obergefell — like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship or susceptibility to genetic disorders. … In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the State Supreme Court agreed. And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”

    I think I know a legal conclusion when it is presented that bluntly. Had the case been considered and decided after briefing and oral argument, rather than by summary judgement, I have no doubt at all that Justices Gorsuch, Alito and Thomas would have upheld the Arkansas statue.

    The danger from a conservative Court is not so much that Obergefell will be reversed outright, but that the decision will be effectively abrogated by a series of decisions permitting differential treatment of same-sex couples. As Justice Gorsuch put it in his confirmation hearings, Obergefell may be “settled law”, but “There’s ongoing litigation about its impact and its application right now and I cannot share my personal views without mistakenly …” before he was cut off.

    That’s where the action will be. Christo-Republican conservatives, understanding that it will be difficult to overturn Obergefell, have moved to a strategy of making same-sex marriage a kind of second-class marriage ― allowing special discrimination against same-sex couples: religious exemptions for businesses, government employees, state-funded adoption agencies, differential treatment under state laws attendant to marriage, and so on. We see the push ongoing in the courts, in state legislatures and in Congress.

    I don’t know Justice Kennedy, but I know that Justice Gorsuch is no Justice Kennedy.

    • posted by JohnInCA on

      “The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate. “
      The statute was about not listing the “biological father” in favor of listing the “husband” on a birth certificate. It’s kind of the exact opposite of what he described.

      Is this the kind of naked sophistry we can expect going forward?

  3. posted by Tom Scharbach on

    Historically … courts have not determined cakes themselves to be expressive activity (therefore not protected speech). But text, writing, and imagery placed on the cake can be considered speech, and a bakery cannot be forced to communicate text or images they deem offensive. The question is whether the creation of a wedding cake itself is a form of speech.

    Exactly. The finding of facts in the case show no discussion of decoration or design of the cake at all.

    From the finding of facts by the Colorado Civil Rights Commission:

    4. On July 19, 2012, Complainants Charlie Craig and David Mullins entered Masterpiece Cakeshop in the company of Mr. Craig’s mother, Deborah Munn.

    5. Complainants sat down with Phillips at the cake consulting table. They introduced themselves as “David” and “Charlie” and said that they wanted a wedding cake for “our wedding.”

    6. Phillips informed Complainants that he does not create wedding cakes for same-sex weddings. Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”

    7. Complainants immediately got up and left the store without further discussion with Phillips.

    No discussion at all about ” text, writing, and imagery placed on the cake”, or, for that matter, the size or shape of the cake, or the color of frosting. Nothing at all.

    Accordingly, with respect to the “expressive services” argument, Masterpiece Cakeshop’s argument has to rest on the assertion that baking a wedding cake, in and of itself, constitutes protected speech.

    Because the courts, as Shackford notes, the courts have resisted the idea that a cake in and of itself is an “expressive service” (instead, rightly in my opinion, treating the cake as a commodity rather than a message-bearer), for Masterpiece Cakeshop to prevail ion the “expressive services” front, the Court is going to have to hold that a wedding cake is somehow different than all other cakes, carrying a message in an of itself.

    As I saId in another comment, I think that’s a stretch.

    The situation is complicated by the likelihood that Masterpiece Cakeshop will be joined with the State of Washington v. Arlene’s Flowers from the Washington Supreme Court if that case is also granted cert, as it probably will be next fall As is the case with Masterpiece Cakeshop, the discussions between the florist and the potential customer never got to the question of design or arrangement, but was stopped dead in its tracks at the order itself.

    If the cases are joined, Shackford’s suggestion that “The case will in all likelihood be very narrowly focused on whether the free speech and free religion rights of bakery owner Jack Phillips have been violated.” is certain to be frustrated.

    The Court will have to confront, in that situation, the broader question of where the “expressive services” line is drawn — if a wedding cake, in and of itself, constitutes protected “expression”, then how about a flower arrangement provided for a wedding? And if a flower arrangement, why not napkins, with or without the grooms’ names?

    In both cases, the petitioners are arguing that providing goods and services to a wedding is, of itself, a message, a form of protected speech. Good luck with that.

    • posted by JohnInCA on

      “In both cases, the petitioners are arguing that providing goods and services to a wedding is, of itself, a message, a form of protected speech.”

      Much to the surprise of everyone involved, it turns out that the guys that delivered the port-a-potties to my wedding (held in my in-laws backyard) were creating “expressive services”.

    • posted by Tom Scharbach on

      Much to the surprise of everyone involved, it turns out that the guys that delivered the port-a-potties to my wedding (held in my in-laws backyard) were creating “expressive services”.

      And probably the guests that used them, too.

  4. posted by Jorge on

    “The question is whether the creation of a wedding cake itself is a form of speech.”

    (Picture of two male figures on top of a wedding cake follows.)

    An impressive argument. I’m not moved by it The photographer, maybe.

  5. posted by TJ on

    Again. I think that their should be certain exemptions involved, and ideally fair minded people would want to protect civil rights and religious freedom.

    This case reminds me (a bit) of the cases involving ballot access. The court has said that the election ballot doesn’t have an expressive activity.

    So, if the act of voting for a candidate- via the ballot- doesn’t really count as an expressive activity , why would the cake?

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