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POV: SCOTUS Should Not Permit “Boycott of Same-Sex Marriage”

Colorado wedding cake case: Kennedy’s opinion key

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On December 5, 2017, the Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which baker (self-described cake artist) Jack Phillips, owner of Masterpiece Cakeshop, asked the court to decide “whether applying Colorado’s public accommodations law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

Phillips appealed the ruling by the Colorado Court of Appeals that he violated the public accommodations provision of the Colorado Antidiscrimination Act (CADA), which prohibits discrimination on the basis of sexual orientation, when, citing his religious beliefs about marriage, he declined to bake a cake to celebrate the wedding of Charlie Craig and David Mullins. The Colorado court held that denying Phillips an exemption from CADA did not violate his First Amendment rights. CADA, the court concluded, “creates a hospitable environment for all consumers,” which “prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind.

The baker argued that he did not discriminate against Craig and Mullins because of their sexual orientation: he would have been happy to sell them any other baked good in his store. Instead, he declined because designing a custom wedding cake for them would force him to “celebrate same-sex marriage” in violation of his conscience. He “seeks to live his life, pursue his profession, and craft his art consistently with his religious identity.”

Perhaps for strategic reasons, Phillips emphasized freedom of speech—freedom from compelled artistic expression—more than the free exercise of religion. The Supreme Court applies heightened scrutiny to restrictions on speech; by contrast, unless a law specifically targets or singles out religion, the court applies a lower standard of review when examining neutral laws of general applicability that have an incidental impact on religion. The US Department of Justice (DOJ), in an unusual move, supports this “compelled expression” argument.

At the oral argument, all eyes were on Justice Anthony Kennedy, the author of the court’s four landmark gay rights cases, including Obergefell v. Hodges (2015), in which the court held that the fundamental right to marry extended to same-sex couples. Masterpiece Cakeshop takes up unfinished business from Obergefell: what happens to religious liberty in a new era of marriage equality?

In their Obergefell dissents, Chief Justice John Roberts and Justice Samuel Alito contended that Kennedy’s majority opinion opened the door to restricting the religious liberty of those who believe that marriage is between one man and one woman. Alito pictured a future in which religious believers who cling to the traditional understanding of marriage could “whisper their thoughts [only] in the recesses of their homes,” but feared that “if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

In Masterpiece Cakeshop, however, Phillips punctuated his arguments with quotations from Justice Kennedy’s majority opinion, for example, about not “disparag[ing]” the “decent and honorable religious or philosophical premises” of those who “sincere[ly]…deem same-sex marriage to be wrong” and about the First Amendment protecting religions and their adherents as they “seek to teach their principles.” Supporters of Phillips urged the court that a ruling against him would fail to realize Obergefell’s “laudable effort to promote tolerance and mutual respect in a pluralistic national community.”

It is always difficult to read tea leaves predicting how the court will rule in closely watched cases, but the oral argument suggested that concern for tolerance and mutual respect may prove key to Kennedy’s approach. Kennedy appeared troubled both by the efforts by Phillips to draw lines to carve out an exception from state antidiscrimination laws for compelled expression and by the lack of accommodation under CADA for Phillips.

With respect to the first concern: Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor persistently questioned Phillips’ lawyer and the DOJ on what lines they asked the court to draw to protect creative expression. Why cake artists and florists, but not makeup artists or hair stylists? Why not tailors? Great chefs? Architects? Justice Stephen Breyer worried that any exception might swallow the rule, creating chaos and undermining all existing civil rights laws. Another concern was whether an exception would apply only to objections to same-sex marriage or also to objections to interracial marriage, interfaith marriage, or even to a message about the equality of women. (To this, counsel strained to distinguish the special case of race from all other cases.)

On the line-drawing point, Kennedy raised concerns that because so many examples of goods and services seemed to involve speech, “It means that there’s basically an ability to boycott gay marriage.” Wouldn’t allowing a merchant to put a sign in the window saying “We do not bake cakes for gay weddings” be “an affront to the gay community”?

On the other hand, Kennedy chided counsel for the Colorado Civil Rights Commission for its treatment of Phillips, admonishing that “tolerance is essential in a free society” and should be mutual. Colorado, however, “has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” Kennedy questioned whether one of the commissioners expressed hostility to religion in commenting that it was a despicable piece of rhetoric to appeal to freedom of religion to justify discrimination, given the long history of such appeals. Kennedy also seemed sympathetic to the argument that public accommodations laws like CADA could exempt merchants like Phillips, so long as a gay couple could readily find the same good or service elsewhere (“we assume there were…other bakery shops that were available”).

What might mutual tolerance mean? A clue may be found in Kennedy’s concurring opinion in the Hobby Lobby case. Kennedy described the free exercise of religion as including not only the “freedom of belief,” but also “the right to express those beliefs and to establish one’s religious…self-definition in the political, civic, and economic life of our larger community.” At the same time, “mutual tolerance” requires respecting “the rights of others.” Tolerance requires that “no person may be restricted or demeaned by government in exercising his or her religion.” Yet such exercise may not “unduly restrict other persons…in protecting their own interests, interests the law deems compelling.”

When it added “sexual orientation” to its antidiscrimination law in 2008, Colorado signaled that protection against discrimination on that basis is a compelling interest, analogous to other forms of prohibited discrimination (such as on the basis of race and sex). Does it demean Phillips and his beliefs to require him to bake a custom wedding cake for a same-sex couple if he would do so for an opposite-sex one? Does tolerance require exempting him from doing so as long as other bakeries are readily available?

Human stories are at the core of this legal controversy, as are analogies to past civil rights battles. Phillips and his amici contended that an exception from public accommodation law for compelled creative expression would affect only a tiny number of business owners; it would save them from a forced choice between their livelihood and violating their conscience. Yet amici for Colorado and Craig and Mullins cautioned that LGBT people in the United States still face “recurring and pervasive discrimination” in the marketplace and never know when they might confront a denial of service. As with the landmark Civil Rights Act of 1964, dignity and equal participation are at stake, not simply dollars and cents or hamburgers—or wedding cakes. Some of the justices expressed concern, at oral argument, about how an exception would compound existing problems of denials of service by funeral homes, medical facilities, preschools, and even taxi drivers.

Whichever way Kennedy goes in this case, rhetoric about tolerance, dignity, and respect will likely be central. It is my own hope that his characteristic concern about dignity, in the court’s prior LGBT rights cases, will shape an outcome in Masterpiece Cakeshop that would not permit—in Kennedy’s words—a “boycott of same-sex marriage” by businesses open to the public or undermine the progress made by states in combating discrimination. I hope the justices will find persuasive the closing argument by counsel for Craig and Mullins (invoking a famous “free exercise” case authored by the late Justice Antonin Scalia) that, once you open the door to allow exceptions to public accommodations law—or other general regulations of conduct—whenever someone has a religious objection or speech objection, you enter “a world in which every [person] is a law unto himself.”

Linda McClain, a School of Law professor of law and the Paul M. Siskind Research Scholar, can be reached at lmcclain@bu.edu. She is the coauthor of Gay Rights and the Constitution (Foundation Press, 2016).

“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow at barlowr@bu.edu. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.

13 Comments

13 Comments on POV: SCOTUS Should Not Permit “Boycott of Same-Sex Marriage”

  • A bucket of fish on 12.19.2017 at 7:46 am

    If the court rules that this Christian baker must make a wedding cake for a gay wedding, it follows naturally that any religious reason is not acceptable as an excuse not to serve a customer. If that is the case, then I would be fully within my rights to demand a Muslim baker make me a cake with a picture of Mohammad on it, and could bring them to court if they refuse.

    People seem to be too willing to ignore the religious beliefs of the individual when those religious beliefs are on conflict with their personal beliefs. I.e. you believe in gay marriage, so it is wrong for the baker not to. It is all too easy to forget that the same principle also applies in cases where you do not disagree with the individual.

    Personally, I think the court should just let the free market handle it. There are literally dozens of other bakers this gay couple had to drive past to get to the one that refused, so why not just ask any of them for a cake? If this individual refuses too many people, he’ll go out of business anyway.

    • JD on 12.19.2017 at 2:12 pm

      Here is the difference in the example you supply and the reality of the situation:

      This baker -already bakes wedding cakes-. This is a refusal to provide a service to a particular group of people while providing that exact same service to another group.

      So, if you can find a Muslim who regularly makes “Mohammed cakes” and then he refuses to make one for you -specifically because you’re Christian-, your argument has legs. Until then, you’re comparing apples and oranges.

      You also mention something that ignores a reality of region. You state that this couple “had to drive past . . . literally dozens of other bakers”. And in this instance, that’s probably true.

      What about rural areas? They make up a huge portion of the nation’s population. I personally grew up in a town of less than 1000 people. We had one grocery store, two gas stations, a handful of restaurants, a dentist—in other words, a highly limited availability of services. The next nearest grocery store was a 20 minute drive away. We had a volunteer fire department because it cost too much to pay for a permanent service.

      What if the owner of that one grocery store claimed that his religious beliefs barred him from selling to Catholics, or to Hispanics? There’s a long history of such prejudice, so it isn’t really that hard to believe. Now the Catholic couple makes a 40-minute round trip to get groceries, rather than a 5-minute errand. What if their car breaks down?

      Or what if the volunteer fire department, or the private ambulance service that served the area, decided their morals wouldn’t allow them to put out a blaze at an atheist’s house, or that they couldn’t transport a Jewish boy suffering from appendicitis to the hospital?

      This isn’t about cake, and it isn’t just about urban areas where there are numerous alternatives. Even Kennedy recognized that fact, although I would argue that allowing an exemption on that basis is dangerous and clumsy, since it requires every scenario to be reviewed in detail, a drawing-out that in many cases is just as hurtful as the initial injurious act itself.

  • Smarter Child on 12.19.2017 at 9:10 am

    The baker bakes wedding cakes. He should sell to any customer that wants one and not discriminate. The Muslim baker does not bake Mohammad cakes. Nobody should be forcing a merchant to offer a product that they do not typically sell.

    • Dan on 12.19.2017 at 9:38 am

      Where your analogy breaks down is that your hypothetical Muslim baker wouldn’t be baking a Mohammed cake for anyone, whereas this Colorado baker is deciding who to sell cakes to based on sexual orientation. A business owner who has a permit to serve the public has to follow certain standards- defined by society, and society’s laws and judges- that a religious institution does not. In other words: Want to discriminate? Go start a church, not a bakery!

      • Dick Lenhart on 12.19.2017 at 9:53 am

        You should re-read Smarter Child’s posting. You are saying the same thing s/he is, that being the baker should not be allowed to discriminate.

  • Andrew Wolfe on 12.19.2017 at 9:13 am

    So for Professor McClain, it’s not enough to silence any questioning of the gay lifestyle or gay marriage. No, it’s important to force the dissenters to their knees, with tens of thousands of dollars in fines, to force them to profess their allegiance and endorsement. And so far, tailors and architects and makeup artists and hair stylists are free from this Orwellian dictatorship. Carve “exemptions”? Exemptions from the right to remain silent? Even accused criminals have that. This is “compelled expression,” and it is the opposite of liberty.

    McClain advocates totalitarian thought control, pure and simple.

    • Kitty on 12.19.2017 at 11:24 am

      It would be helpful to know more about the circumstances: Did the gay couple seek out Philips’ bakery because there were many other bakeries willing to create the cake they wanted, and they wanted to find someone who declined, specifically for the purpose of initiating action against Baker? Was there a design or inscription that “celebrated gay marriage” rather than simply marriage?

      What was the priority for the initial complainants: Having a cake for their wedding, or making a political example of this baker?

      • Andrew Wolfe on 02.19.2018 at 11:56 am

        You’re suggesting bad will on the part of the plaintiffs. Unfortunately they have shown a lot of evidence to support your suggestion.

  • Sesquhana Lord on 12.19.2017 at 3:06 pm

    the gay couple saught out this Christian baker specifically… they knew he was a Christian and purposefully tried to “trip-him-up”…glad to see the courts got it right for once! And if I went into say a Mulim owened resturant and demanded they make me a BLT or any other “pork” product …well,there ‘ya have it!

  • David Asset on 12.19.2017 at 3:30 pm

    The baker arguing that making a cake for a same-sex marriage is a violation of his religious beliefs because it would force him to participate in and condone something against his religion is ridiculous. When he writes “Happy Birthday, Ashley” on a birthday cake, he is not participating in the birthday party, nor are the happy birthday wishes he inscribed on the cake his birthday wishes. They are the sentiments of whoever ordered and paid for the birthday cake. This is such hogwash, something cooked up by the Religious Right to legalize their continued discrimination against a class it disapproves of.

    • Andrew Wolfe on 02.19.2018 at 11:57 am

      We Christians condone and endorse birthday parties as a celebration of every human life.

      • jm cutright on 03.12.2018 at 9:36 pm

        so, would the baker bake a cake for the couple’s children’s birthday party? or would baking that cake be refused too? if so: how far does this refusal extend? are any children this couple raises refused a cake? & any of their children’s children?

        the baker is asked to bake a cake – the baker can read his bible any way he needs, think whatever he wants, & keep those thoughts to himself or express them privately.

  • Kelle on 01.20.2018 at 2:14 pm

    discrimination is discrimination is discrimination. Let them eat cake!

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