Thursday, June 7, 2018

A Note On A Subsidiary Issue In Masterpiece Cake And Then A General View

Masterpiece Cake case:


a long note on a subsidiary issue in the Masterpiece Cake case and then a general overarching view of the case’s main issue.

The issue is whether it was inconsistent for the Commission to exonerate three bakers who refused to bake a cake with an anti gay wedding message  but yet to hold baker Phillips in violation of Colorado law in refusing to bake a cake for a gay wedding. 

Colorado law says: 

- [ ] ....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 disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.....

Kennedy noted this apparent inconsistency in results as one of the “data points” underlying the Commissioners’ religious animus towards Phillips, which meant he didn’t get a neutral hearing, which then meant the Commission’s decision had to fall:

- [ ] ....As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory”.....

- [ ] The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.....

- [ ] The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.....

Justice Gorsuch on this point held that the seeming inconsistency is in fact a real inconsistency, that the cases are not distinguishable. In the anti gay message cases, the customer, Jacks, wanted a cake that reflected his religious creed, which held against gay marriage, and the refusing bakers were exonerated based on the Civil Rights Division’s (the “Division”) theory that the message offended their, the bakers’, secular convictions. 

The Division made two points: the bakers would have refused anyone who wanted that message on a cake; and the bakers would have made a cake for the same people (and anyone else) had they wished a different non offending message. 

The Commission rejected Jacks’s appeal:

- [ ] ....But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack as they would have anyone who requested a cake with similar messages, regardless of their religion. The Division pointed, as well, to the fact that the bakers said they were happy to provide religious persons with other cakes expressing other ideas. Mr. Jack appealed to the Colorado Civil Rights Commission, but the Commission summarily denied relief....

For Gorsuch, Philips similarly out of his own religious convictions refused to bake a cake celebrating a gay wedding. But he would bake these or any gay customers  cakes for other occasions. Nor would Phillips bake a cake for a gay wedding at the request of any customer, gay or straight. 

The Commission held that Phillips breached the law. 

So, for Gorsuch, both customers wanted protection for a protected category: Jacks, a creedal belief; and the others, sexual orientation. All the bakers refused these specific requests only out of deep personal conviction.  The bakers would have refused anyone’s request for similar cakes. And all the bakers would have baked other things for the same customers:

- [ ] ....the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers....

The Commission exonerated the Jacks bakers for wanting to avoid creating an offensive message even as the effect of that was to exclude anyone religiously desiring that message and even as the law proscribed refusing service because of creed. But it held Phillips liable on the theory that, as noted by Gorsuch, 

- [ ] “intent to disfavor” a protected class of persons should be “readily ... presumed” from the knowing failure to serve someone who belongs to that class...In its judgment, Mr. Phillips’s intentions were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.”

But, says Gorsuch, if Phillips’s objection is inextricably tied to a protected class, those of a gay sexual orientation, then so must be the Jacks’s bakers’ objection, those of a certain religious creed and faith. To distinguish between the two is not a neutral treatment of religion. 

- [ ]  .....In the end, the Commission’s decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it declined to presume the same intent in Mr. Jack’s case even though the effects of the bakers’ conduct were just as foreseeable....

- [ ] appears the Commission wished to condemn Mr. Phillips for expressing just the kind of “irrational” or “offensive . . . message” that the bakers in the first case refused to endorse. ...

- [ ] is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.....Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom....

Against Gorsuch, Kagan argues (barely comprehensibly to me) that the gay customers’ protected trait, their sexual orientation, informed Phillips’s denial of service. For if they were straight he would have baked either of them a cake. But, she argues, if Jacks were of different religion, those bakers would have still refused to bake that specific cake bearing an anti gay wedding message. In Jacks’s case, the bakers’ refusal had nothing to do with religious opposition to gay marriage. They simply refused to create a message that violated Colorado’s accommodations law:

- [ ] .....JUSTICE GORSUCH argues that the situations “share all legally salient features.” But what critically differentiates them is the role the customer’s “statutorily protected trait,” played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex weddings.” Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other....

Gorsuch answers Kagan’s objections by arguing that for these purposes there is no legal difference between a cake meant for a gay wedding and a cake with a specific text on it:

- [ ] .....Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it cele- brates a same-sex wedding....

- [ ] ....Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated....

And he further argues that Phillips’s refusal cannot be resolved by some view that, as Kagan would have it, a cake is just a cake is just a cake, and is not a symbolic expression of affirmation for the wedding it’s designed for:

- [ ] .....We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. 

The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here....

I find Gorsuch’s arguments persuasive compared  to Kagan’s, which I understand, but which make little sense to me for the reasons Gorsuch explains.

More generally: 

While I’m totally for gay marriage and the grant to gay couples and individuals of all equal rights—“grant” may not be the right verb; “recognize” is better—I’m sympathetic to the argument based on compelled speech, assuming baking a fancy, symbolic and specified wedding cake can be legally likened to the expression inherent in artistry. 

Not otherwise.

The most troubling argument to me has been the question of what if the baker for religious reasons, sincerely but perversely held, is against interracial marriage.

I struggled with it and offered a few answers that didn’t sit well with me.

But I’ve had a good conversation with my younger lawyer daughter, who gives and takes good arguments equally well. And it came to me.

I think.

No dancing around the application of strict scrutiny or hiving off racial issues for special consideration: no, I think the issue has to be met head on. And the answer I think—I stress “I think” because it’s not necessarily conclusive—is that compelled speech must apply to the religiously based animus against interracial marriage if that’s what is sincerely and deeply believed. 

Compelled speech, which is as strong and embracing as the 1st Amendment itself, can’t be splintered into the convictions we can live with and the ones we can’t. If Nazis can march under their rights of assembly and unbridled expression, short of incitement, then bakers oughtn’t be compelled to create against their convictions, if they come within the ambit of artists, who can’t be compelled to act against their convictions.

Nobody made that argument before SCOTUS and I doubt it was briefed. But I do believe and think that it is the principled answer to the troubling question of what to do if race is at the bottom of the refusal to provide service.

1 comment: