After the Supreme Court’s decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission this Monday, TMC editor in chief John Sides asked Jane S. Schacter, William Nelson Cromwell professor of law at Stanford University, questions about its political impact. Here’s what she had to say.
John Sides: So far, the commentary on this ruling suggests that its meaning is very limited. What did the justices actually do here?
Jane Schacter: The ruling is notable for its narrowness. The court was invited to issue a broad ruling shielding merchants who have religious objections to same-sex weddings — protecting them from delivering goods and services that religious liberty proponents claimed would be “compelled speech” in favor of same-sex marriage. There was a fierce argument about whether baking a cake is “speech.” Had the court said it was, the key question would have been which other goods and services would count as compelled speech. What about flowers? Linens? Wedding venues?
But the court ducked that question. Instead, it made three critical choices.
First, it framed the decision in terms of free exercise of religion, not freedom of speech.
Second, it emphasized how the Colorado anti-discrimination commission disparaged religion in handling this issue. Here the court focused on derisive comments made about [Masterpiece owner Jack] Phillips’s beliefs by state officials and the fact that the state gave other bakers leeway to refuse to bake cakes based on what might be seen as nonreligious claims of conscience. The majority said that doing so violated the principle that neutral laws — in this case, anti-discrimination laws — cannot be applied with animus toward religion.
Third, in several passages the majority resisted any broad exemption for religiously motivated merchants who object to serving same-sex couples, whether on free-speech grounds or on other constitutional grounds. Justice Kennedy said, for example, that “society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth” — and that “the exercise of their freedom on terms equal to others must be given great weight by the courts.”
And he said categorically that while “religious and philosophical objections are protected … such objections do not allow business owners to deny protected persons equal access to goods and service under a neutral and generally applicable public accommodations law.” This sends a pretty strong signal that Kennedy, at least, would resist broad religious-liberty claims that shielded merchants from anti-discrimination laws.
John Sides: The ACLU’s David Cole, who represented the plaintiffs, wrote here at The Washington Post that while his clients lost the battle, they won the war. Would you agree?
Jane Schacter: That depends on who will be deciding cases in the future.
Justice Kennedy has had outsize importance on LGBT rights, writing majority opinions in all the signal decisions issued by the court in the last two decades. And now he has written Masterpiece, which in part protects those decisions. What will happen if he leaves the court?
Masterpiece’s concurrences suggest that Justices Thomas, Alito and Gorsuch would like to apply a broader idea of religious liberty. The chief justice did not join those opinions. The opinions written or joined by Justices Ginsburg, Breyer, Sotomayor and Kagan resisted broad claims that religious liberty could override anti-discrimination laws.
So even if Kennedy was replaced with someone more like Gorsuch, we do not know if there would be five votes for a broader religious-liberty claim than the limited one accepted in Masterpiece.
John Sides: Is this decision related to Hobby Lobby’s protection of religious freedom at all?
Jane Schacter: Both cases pit religious liberty against equality claims. In Hobby Lobby, the business argued that for religious reasons it objected to the Obamacare mandate to offer insurance that covered contraception — something many women argue is essential to gender equality. But that case was decided not under the First Amendment but the federal Religious Freedom Restoration Act, or RFRA. That act grants stronger protection to religious liberty than does the First Amendment’s free-exercise clause. But because of an earlier precedent, the Supreme Court uses First Amendment as a standard in cases like Masterpiece involving the states.
John Sides: What is the state of the ongoing legislative skirmishing between religious-freedom acts and anti-discrimination laws?
Jane Schacter: Twenty-one states currently have their own version of RFRA, and more continue to be introduced. The most expansive of these laws will surely face constitutional challenges. Mississippi’s law is probably the most extreme in permitting, among other things, businesses to deny service to LGBT customers and has been challenged as violating LGBT individuals’ constitutional rights. The Supreme Court recently decided not to hear a challenge to that law, but it was a procedural question only. Expect further litigation.
John Sides: It sounds as if this case didn’t exactly end the debate between religious liberty and anti-discrimination principles.
Jane Schacter: You’re right. The conflict will almost certainly continue. The narrowness of the stated grounds in Masterpiece will invite continued litigation.
On the political side, the Trump administration has actively supported litigation to protect religious liberty and to oppose expanded discrimination protections for LGBT people. It has also issued executive orders expanding protections for religious liberties. I see no prospects that these disputes will recede any time soon.