In the Masterpiece Cakeshop v. Colorado Civil Rights Commission case recently argued at the Supreme Court, Colorado baker Jack Phillips argue that his 1st Amendment right to free speech and free exercise permits him to deny his services baking services to a same sex couple wishing to purchase a cake for their wedding.
Much of the analysis that has followed the oral arguments of that case has given focus on a particular exchange between the justices and the lawyer for Mr. Phillips. Justice Sotomayor asked Phillips' lawyer "Is your theory that public accommodation laws cannot trump free speech or free-exercise claims in protecting against race discrimination?"
Phillips' lawyer responded that that was not their theory, that race is a "very different case...I think race is different for two reasons: one, we know that that objection would be based to who the person is, rather than what the message is and, second, even if that were not the case, the Court could find a compelling interest in the race inquiry just as it did in [a prior case]."
Justices Sotomayor and Kagan pressed the lawyer further on discrimination against the irreligious and the disabled, specifically posing the hypothetical that a bake could assert "I'm not going to serve cakes to two disabled people because God makes perfect creations". The lawyer replied as to the disabled that she was "not aware of any religions that believe that but, if they did, that would clearly be based on who the person is and not the message in the final product." But she also asserted that discrimination against the irreligious "would be protected under the Compelled Speech doctrine if the objection is to the message being conveyed in that expression."
This approach by Phillips' lawyer is pure sophistry since the record shows that the same sex couple was denied service by Phillips immediately when approached about buying a cake. If the couple planned to ask Phillips to write some "compelled speech" on the cake like "I heart same sex marriage," the conversation never progressed far enough for them to ask. Upon learning that the couple was a same sex couple wanting to order a wedding cake, they were immediately denied service.
It should be apparent to any rational person that the couple was denied for being a same sex couple, not because of some sort of compelled speech. They were denied for "who the person is, rather than what the message is."
The whole line of argument by Phillips and his Masterpiece Cakeshop is a dangerous threat to non-discrimination in general because it is opening the door to proxies to bypass non-discrimination laws and the most serious threat is not to racial non-discrimination laws, but rather laws that protect religious people from discrimination. While the right wing religious groups bankrolling and supporting Phillips case will refuse to acknowledge it, they are seriously undermining the very laws that protect religious views and practices from being discriminated against. Part of the reason they fail to see this is the unacknowledged similarity between the way they view sexuality and sexual orientation. Most right wing religious people see LGBT people as manifestations of immoral conduct, and not as people possessing an innate characteristic. To them, there is no such thing as a gay person, but rather a normal person engaging in homosexual conduct. This does not differ much from a dispassionate analysis of religion: a person that does not have any inherent characteristic, but engages in certain behaviors that define one to be a Christian, Muslim, Jew, Sikh, etc.
The line of questioning I would have like to have seen from the Justices to elucidate this similarity would have been along the lines of "Could Mr. Phillips deny his cake baking services to a Christian couple because he does not agree with their message that ritual cannibalism is OK?" or "Could Mr. Phillips deny his cake baking services to a Jewish or Muslim couple because he does not agree with their message that genital mutilation of newborn males is OK?"
It is a rite of almost all Christian faiths to perform the Eucharist, a ceremony where bread and wine are spiritually transformed into the body/flesh and blood of Jesus Christ. By disciminating against a Christian couple, such a baker would be giving affect to and thereby respecting the belief and free exercise of the Christian faith that the bread and wine actually becomes flesh and blood. The baker wouldn't be discriminating against their faith, but rather their conduct of after the spiritual transformation, the Christians eating the flesh and drinking the blood. Is the baker not free to condemn the rite's inherent approval of cannibalism just as he is free to condemn the approval of same sex relations he claims to be inherent in baking for a same sex couple?
Similarly, circumcision of newborn males is almost universal among adherents to the Jewish and Muslim faiths. Can the baker show his moral opprobrium to the practice by automatically denying service to Jewish and Muslim couples based on their assumed support for the practice?
In other words, the cake baker's case boils down to whether he can escape non-discrimination laws by some proxy conduct he associates with persons he sees as not having a particular characteristic. Christianity is not innate, but largely conduct and Christians are almost universal in their Eucharistic beliefs. The Jewish and Muslim religions are not innate, but largely behavioral and newborn male circumcision is almost universal among Jewish and Muslim people. Being a Christian can therefore be said to be a message of advocacy of this particular form of cannibalism and adhering to the Jewish or Muslim faith can be seen as an advocacy of newborn male circumcision.
If being gay is merely a behavior, not an innate characteristic, that can be discriminated against, how is religion, which is not innate, but based on conduct, not also open to discrimination in public accommodations?
It is important to remember, discrimination on the basis of religion in public accommodations is not a law derived from the 1st Amendment and 14th Amendment incorporation of the 1st Amendment. If a business discriminates on the basis of religion, it is not the government that is the discriminator, thus the 1st and 14th Amendments don't apply. Religious discrimination in public accommodations is illegal because of statutory laws, such as the Civil Rights Act of 1964. The courts have found that such laws are valid, even in the face of the strongly held religious beliefs, if they are a facially neutral law of general applicability supported by a rational relationship to a legitimate government interest. In fact, the leading case of the modern jurisprudence of this was authored by none other than Antonin Scalia in Employment Division of Oregon v Smith in 1990. However, even before that, the Court has recognized that the government has a compelling interest in eradicating discrimination in public accommodations. See eg. Heart of Atlanta Hotel vs United States upholding the Civil Rights Act of 1964.
Colorado has similarly passed a law prohibiting discrimination on the basis of sexual orientation in public accommodations:
It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .
In its ruling against Masterpiece Cakeshop, the Colorado Court of Appeals noted "Masterpiece thus distinguishes between discrimination based on a person's status and discrimination based on conduct closely correlated with that status. However, the United States Supreme Court has recognized that such distinctions are generally inappropriate."
Indeed, the Supreme Court would almost certainly find discrimination against a couple because of their asserted pro-cannibalism message or against a couple because of their asserted pro-newborn male genital mutilation message to be a ruse for discriminating against Christians, Jews and Muslims. The Colorado Court correctly noted that in several cases, including Christian Legal Society Chapter of Univ. of California, Hastings College of Law v. Martinez and Lawrence v. Texas, that "Our decisions have declined to distinguish between status and conduct." Both of these cases also involved homosexuality and the close relation of "homosexual conduct" to "homosexual persons." Justice Kennedy, in his opinion for the majority in Lawrence v Texas stated "When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination." Justice O'Connor in her separate, more limited concurrence, agreed: "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class."
This case, however, represents the first time LGBT people are not the target of the law, but rather the ones benefiting from the laws protections. It is a question of whether the same laws that protect people of faith from discrimination in public accommodations also can be created to protect LGBT people from discrimination. While there is no Federal law protecting LGBT people from discrimination in public accommodations, Colorado does have such a law at the state level.
There seems to be a panic among some who believe this case may be the bridge too far for Justice Anthony Kennedy, who at times seemed outright hostile to Colorado's defense of its non-discrimination law in the oral arguments. Based on Kennedy's past jurisprudence, I think the hostility stems from a particular portion of the ruling by the first tribunal to hear the case, the Colorado Civil Rights Commission, and what Kennedy's sees as one of its commissioner's hostility towards religion. I have a difficult time believing that the man that wrote Romer v Evans, Lawrence v Texas, Windsor v U.S., and Obergefell v Hodges and joined the majority in Christian Legal Society Chapter of Univ. of California, Hastings College of Law v Martinez would somehow do a 180 and open the door to all sorts of discrimination against LGBT people.
I don't think there is a clear cut win in store for the LGBT side of the case either. I think the most likely result of this is some form of a punt: The Colorado Civil Rights Commission will be vacated on the grounds of violating the principle of governmental neutrality towards religion and remanded back to the Commission for further proceedings. Whether the Court decides to also include at least a partial ruling on the merits of the baker's proxy discrimination, attempting to distinguish between discrimination against a gay couple and an asserted claim of compelled speech approving of homosexuality entailed to baking a wedding cake for a same sex couple, is less certain, but if they do, I fully expect that part to come down on the side of the Colorado Civil Rights Commission, that discrimination based on conduct closely correlated with homosexuality is no different than prima facie discrimination against homosexuals. In that event, we could very well see an odd 4-1-4 split in the court with no single majority opinion, but rather Kennedy's split-the-difference concurrence in part with both camps effectively serving as the controlling opinion.
