Monday, June 04, 2018

Masterpiece Cakeshop Ruling Should (But Probably Won't) Doom the Travel Ban

by Michael Dorf

Today's SCOTUS decision in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n is erroneously but predictably being described in the press as a victory for religious merchants who want to deny service to gay couples. For example, this instant NY Times story is correctly but misleadingly titled "Supreme Court Sides With Baker Who Turned Away Gay Couple." Worse, the original version of the story (which has now been updated) described the free speech argument made by baker Jack Phillips in a way that gave the impression that the SCOTUS had accepted the free speech claim.

It did not. Justice Kennedy's opinion for the Court specifically acknowledges the difficulty presented by the free speech claim. Absent a showing that Phillips was asked to create an articulate pro-same-sex-marriage message on the cake, Kennedy notes, a free-speech ruling in favor of Masterpiece/Phillips would mean that "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations." The Court DID NOT rule in favor of the free speech claim. Justice Kennedy's opinion doesn't decide the free speech issue, but to the extent that it offers any hints, the opinion suggests that any free speech exception to public accommodations laws will be narrowly confined.

So why did Phillips/Masterpiece win? Because the Court found that the Colorado Civil Rights Commission's consideration of the case was infected with anti-religious bias. As I'll explain, that's a dubious decision, justifiable, if at all, as an act of prudence in ducking the harder questions in the case. As I'll also explain, if the ruling is taken seriously, it should spell doom for the Trump administration in the pending Travel Ban litigation.

What was the supposed anti-religious bias? Justice Kennedy points to two sets of statements. First, one commissioner stated that a person is entitled to his religious beliefs but cannot act on them to discriminate in his business. Although stating a controversial view about the obligation of the state to accommodate religion, that is not by any stretch of the imagination an anti-religious view. If it is, then Justice Scalia--who authored the Supreme Court's decision in Employment Division v. Smith--and Justice Kennedy--who joined that opinion--were guilty of the same anti-religious view, because the best way to read this commissioner's statement is simply that neither Colorado law nor the federal Constitution grants people religious exceptions from general laws. And the latter is just the holding of Smith.

Justice Kennedy points to another statement by a Commissioner:
freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
The majority opinion then reads this statement as describing someone's religion as despicable, which is at least as bad a reading of the comments as the deliberately out-of-context interpretation that Trumpsters gave to Hillary Clinton's reference to some of them as deplorables. Why? Because it's clear that the Commissioner was not saying that religion or religious beliefs or people who hold religious beliefs are despicable; rather, he was saying that the mere fact that someone invokes his religion in support of some practice does not render that practice acceptable; giving historical examples of religion being used to justify despicable practices makes the point dramatically if perhaps somewhat hyperbolically.

The majority opinion also makes much of the fact that Colorado did not disavow the "despicable" comment. No other commissioner, state court judge to rule on the case, or state lawyer in its brief distanced the state from the supposedly offending remarks. The obvious reason for that lack of disavowal, however, is that none of those people read these comments in the improbable way that the SCOTUS did, and so probably saw no need to disavow them.

Justice Kennedy's opinion also says that the Colorado Civil Rights Commission may have discriminated against religion by rejecting public accommodations claims on behalf of people who sought and were denied cakes bearing anti-gay messages. Yet that ought to have been completely irrelevant, because, as I explained shortly after the oral argument, those claimants were not complaining about discrimination based on religion; they were complaining about discrimination based on ideology; and Colorado's public accommodations law does not forbid ideological discrimination. Indeed, Justice Kagan, in a concurrence joined by Justice Breyer, makes just this point, but then says that she joins the majority opinion anyway because the Colorado Civil Rights Commission did not expressly rely on this obvious distinction. Yet the SCOTUS rarely reverses state courts on the ground that they were right for the wrong reason.

Put simply, the stated rationale for the ruling in Masterpiece doesn't wash. At best, it is a masterpiece of ducking the hard questions.

BUT assuming that the Court means what it says in Masterpiece, that should doom the Trump administration in the pending Travel Ban case. There the evidence of anti-religious bias is much stronger than in Masterpiece. Candidate and then President Trump repeatedly called for a Muslim ban and his spokespeople described the policy that became Travel Ban 1 as an attempt to dress it up to make it look legal. That Travel Ban 1 was, in turn, a but-for cause of Travel Ban 3, now before the Court. Meanwhile, despite being given multiple opportunities and invitations to do so, President Trump has never disavowed the anti-Muslim animus that underwrites the Travel Ban.

Do I expect the Court to invalidate the Travel Ban? Not necessarily. Wearing my legal realist hat, it becomes clear that Masterpiece was an act of prudence by the majority--everyone but Thomas on the right and Ginsburg and Sotomayor on the left--to avoid a difficult and divisive decision about how to reconcile the First Amendment with public accommodations laws. By contrast, in The Travel Ban case, prudence could lead the justices in a different direction. Concerned about politesse, they may fear to base their opinion on the fact that the president of the United States is a bigot--even though the evidence for that proposition is very much stronger than the evidence of bigotry on the part of one or two Colorado Civil Rights Commissioners.

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**Update: As I was writing the foregoing, Prof. Leah Litman was reaching the same conclusion about the Travel Ban in an essay for Take Care.

17 comments:

Joe said...

Like RBG, Leah Litman is a fast writer. Her piece goes into more detail.

I think the dissent is correct in this case and even Kagan/Breyer probably agrees deep down (who knows) and they clearly also think that the couple had the right to the cake. I am concerned with certain applications (see Hobby Lobby) but the basic principles of the majority opinion are positive (including reaffirming basic gay rights).

As to framing, yes, I fear people misunderstanding what happened here & not just Donald Trump. The NPR announcement of some big loss and one host of a gay news program responding as if the opinion was much broader than it was doens't help my concerns much. There will be some who will use this to continue the frame that gay rights amounts to bias against Christians.

In other news, the Supreme Court in an order dealt with an abortion case that leaves me wondering what took so long.

Fred Raymond said...

So I took the time to read the whole case, which I usually do not, and I find that only in the dissent is the conclusion fully logical. The other justices seem to not even be considering the actual case itself, but to be basing their decision on how they thought the case had been mishandled previously.

(Disclosure: I am a 59-y-o plant electrical engineer with no formal legal background.)

Asher Steinberg said...

Litman's piece is quite bad. This is less tendentious, but if you weren't so supportive of the Establishment Clause claim (which I don't think can get past Mandel and Fiallo) in the travel ban cases, I don't think you would overlook the obvious distinctions between it and Masterpiece, which are:

In Masterpiece, the Court found animus in statements made in the official decisional process itself, not statements that members of the Commission made on Twitter, at political rallies, etc. And I think we would all recognize that using speeches individual commissioners made outside the adjudicative process, before or even after they became commissioners, to hold that their decision was unconstitutional would be nuts (subject to the caveat below). But no one claims that anything in Trump's executive order itself, or statements of the agencies in the interagency process that led to it, suggests animus. The best statements people can point to are statements Trump made as candidate in proposing an entirely different proposal.

In Masterpiece, the Court relies on a difference in reasoning between the Commission's adjudication of Phillips' claim and its adjudication of other cake cases; in his, cakes weren't his speech, in the others, when cake bakers didn't want to bake cakes conveying roughly the same views Phillips has, cakes were the bakers' speech. This happens, as Kagan says, in spite of the existence of obvious neutral grounds on which to reach the results they reached. In the travel ban cases, however, the EO sets forth a facially neutral rule that explains why they're excluding everyone they're excluding and not excluding everyone they aren't excluding. The plaintiffs are left to suppose, largely on the basis of things Trump said before he became president, that the real justification is something else. Nothing in Masterpiece suggests that had the Commission offered the neutral and generally applicable reasoning that Kagan suggests, their decision could nevertheless be held discriminatory on the basis of things the commissioners said before taking office, or said of the religious afterwards without referring to Phillips' case, and so on. Rather, I think it's fair to assume that for the Court to look behind a series of state adjudications that applied neutral and generally applicable rules without a hint of animus, the adjudicators would have to flatly admit in some forum that their actual rationale for their decisions was discriminatory. I don't think there's anything like that in the travel ban cases.

Joe said...

Eric Segall on Twitter announced that he will talk about this case on the Steele & Ungar Show (7:15PM)

egarber said...

<<Justice Kennedy's opinion also says that the Colorado Civil Rights Commission may have discriminated against religion by rejecting public accommodations claims on behalf of people who sought and were denied cakes bearing anti-gay messages.

I don't know the details of those other claims, but were they potential examples of "compelled speech" - where the baker refused to produce a specific anti-gay message, vs a cake they would otherwise sell, but for the identify of the patrons? Wondering if a differentiator might be that in those cases, it would be more than mere incidental association.

egarber said...

So if / when the baker refuses again in a similar situation, what happens? As long as the commission is more tactful in finding against him, are we simply back at the same starting point - examining cakes in the context of speech? Did this ruling move the Speech meter exactly zero distance?

egarber said...

Looks like Ginsburg answered my first question. I mean, whether or not this would constitute "compelled speech", it is certainly different:

"On March 13, 2014—approximately three months after
the ALJ ruled in favor of the same-sex couple, Craig and
Mullins, and two months before the Commission heard
Phillips’ appeal from that decision—William Jack visited
three Colorado bakeries.

His visits followed a similar
pattern. He requested two cakes
“made to resemble an open Bible. He also requested
that each cake be decorated with Biblical verses. [He]
requested that one of the cakes include an image of
two groomsmen, holding hands, with a red ‘X’ over the
image. On one cake, he requested [on] one side[,]
. . . ‘God hates sin. Psalm 45:7’ and on the opposite
side of the cake ‘Homosexuality is a detestable sin.
Leviticus 18:2.’ On the second cake, [the one] with the
image of the two groomsmen covered by a red ‘X’
[Jack] requested [these words]: ‘God loves sinners’ and
on the other side ‘While we were yet sinners Christ
died for us. Romans 5:8.’ ” App. to Pet. for Cert. 319a;
see id., at 300a, 310a.

In contrast to Jack, Craig and Mullins simply requested a
wedding cake: They mentioned no message or anything
else distinguishing the cake they wanted to buy from any
other wedding cake Phillips would have sold."

robert moss said...

The Injustices make a mockery of the supposedly august body on which they sit. More when I get a chance to read the decision, but I suspect Mike has hit all the nails on the head.

egarber said...

.. more from Ginsburg. I clipped too soon.

"The Court concludes that “the Commission’s consideration
of Phillips’ religious objection did not accord with its
treatment of [the other bakers’] objections.” Ante, at 15.
See also ante, at 5–7 (GORSUCH, J., concurring). But the
cases the Court aligns are hardly comparable. The bakers
would have refused to make a cake with Jack’s requested
message for any customer, regardless of his or her religion.
And the bakers visited by Jack would have sold him
any baked goods they would have sold anyone else. The
bakeries’ refusal to make Jack cakes of a kind they would
not make for any customer scarcely resembles Phillips’
refusal to serve Craig and Mullins:"

Fred Raymond said...

What egarber says above at 3:17 PM. The Court seems to have based their decision on how the case was mishandled before they got it, rather than on the actual content of the case itself.

Yeah, these are hard cases. So it's even more important for them to be resolved, not averted.

Joe said...

Somewhat unfortunate if Prof. Dorf doesn't comment on them but appreciate the various views.

Michael C. Dorf said...

Okay, Joe, I'll respond to one thing, Asher's suggestion that an extramural declaration could never undercut an official reason. As he would have it, if the president signed a piece of legislation with an obvious disparate impact on a religious group--Mormons, let's say--and repeatedly said in public that "I am going to sign that legislation because I despise the Mormon religion"--then so long as neither the signing statement nor the legislation itself recited any anti-Mormon bias, no Free Exercise, Establishment, or Equal Protection claim would be available. There is no basis for that conclusion. It's true that the supposed evidence of illicit intent in Masterpiece takes the form of statements during a public meeting, but all of the leading precedents make clear that the key question is illicit intent. There is no rule of evidence that excludes statements made in other contexts. (And all of this concedes for the sake of argument that Trump's post-presidential tweets are not official statements.)

Shag from Brookline said...

Query: How many Commissioners were present when certain Commissioners made statements that Justice Kennedy focused upon? Was there evidence that all the Commissioners agreed with those statements? In the Trump/Mormons hypo of Mike, all were by Trump. Shouldn't this make a difference regarding Asher's suggestion?

Shag from Brookline said...

Might President Trump's hosting a Ramadan function at the White House at this late date narrowly be considered counter to his alleged Muslim animus regarding last year's travel bans?

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نور الهدى said...


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