Today’s oral arguments in the long-awaited Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission case showed a closely divided Supreme Court juggling weighty issues of free speech, religious liberty, and equal rights. As Cristian Farías observes, the facts of the case post an exquisite mix of the constitutional concerns long held by the almost-certain swing vote, Justice Anthony Kennedy. Kennedy is the LGBTQ hero who decided the case that swept away state prohibitions on same-sex marriage — but he is also a serious Catholic and a bit of a free-speech absolutist.
The case, which involves a conservative Christian baker Jack Phillips’s refusal to bake a wedding cake for a same-sex wedding ceremony, has often been billed as creating an apocalyptic clash between long-established anti-discrimination principles and inchoate but rapidly expanding notions of “religious liberty,” as protecting active as well as passive forms of religious expression. And if the Court — meaning, Anthony Kennedy — chooses to make it that, the decision could become a landmark in not just constitutional law, but also in the culture wars.
But it doesn’t have to come to that. The baker in the case is advancing two theories of why he should have the right to refuse to bake the famous cake, relying on two different elements of the First Amendment. One is a religious expression claim, but the other is a free-speech claim, based on the theory that a custom-designed cake is a product of creative expression, like a painting — or, for that matter, a magazine column. Making the case about the latter issue, no matter which way the decision turns out, would set a much narrower precedent, since most “religious liberty” claims involve activities that cannot be described in any sense as “speech.”
Georgia State University law professor Eric Segall made a persuasive case in September that the Court should “disentangle” the two arguments:
There are important reasons the Supreme Court should carefully distinguish between Phillips’ speech and religion claims. Nondiscrimination laws promote compelling governmental interests in fighting inequality and unlawful discrimination. Colorado and numerous other states have made it illegal for businesses to refuse to provide their services to potential customers based on race, gender, national origin, and, in Colorado’s case, sexual orientation. It wasn’t that long ago that Americans who ran businesses and schools used their religious beliefs to justify discriminating against African-Americans. Discrimination in the provision of secular services based on religious belief is still discrimination, and does not deserve constitutional protection.
Phillips’s free-speech claims, however, raise wholly different issues and concerns. He alleges that the custom cakes he makes for weddings are expressive, and that the government cannot force him to adopt a government-required message.
Steering away from a religious exercise versus anti-discrimination focus in making this decision will not, of course, make it easy to avoid such conflicts in the future. For one thing, a lot of the litigation in the future will probably involve statutory religious-liberty claims against government actions under the Religious Freedom Restoration Act and its many state equivalents. (That was the basis of the Hobby Lobby decision, which exempted a private for-profit business from the contraception-coverage mandates of the Affordable Care Act.) But enshrining a broad-based constitutional right to discriminate on religious grounds, as the Court could do in the Masterpiece Cakeshop case, would be very dangerous — and, for purposes of protecting Phillips’s sensitivities, unnecessary.