Friday, August 10, 2018

Masterpiece Cakeshop and Disparate Impact

by Sherry F. Colb

In my Verdict column today, I talk about a law, proposed but defeated in Lower Austria, that would have required Jews and Muslims who wanted Kosher and Halal meat, respectively, to register as observant Jews and Muslims.  My post here is not about discrimination in Austria, but it revolves around a somewhat related question that arose in a case before the US Supreme Court this past term: How should the Constitution define discrimination on the basis of religion?

Toward the end of the term, the justices narrowly decided Masterpiece Cakeshop v. Colorado Civil Rights Commission. To refresh your recollection about the case, it involved a baker (Jack Phillips, owner of Masterpiece Cakeshop or "MC") who refused to prepare a wedding cake for a same-sex couple that had requested one. The couple complained to the Colorado Civil Rights Commission, and the latter found that MC had violated the Colorado anti-discrimination law by refusing the couple a cake. MC defended itself with the argument that it had a First Amendment right not to "speak" a message with which it disagreed through the creation of a same-sex wedding cake and offered a second argument that the Colorado commission had engaged in religious discrimination by finding against MC (but not an experimented-upon secular baker), because MC had a religious reason for refusing the couple a wedding cake. Ultimately, the Supreme Court determined that one of the commissioners in the Colorado commission had exhibited anti-religion bias in describing the case and that this bias tainted the decision of the court that affirmed the finding of anti-gay discrimination.

Others have noted the troubling inconsistency between the way the Court resolved MC and the Court's unwillingness to allow the President's unrelenting racism against Muslims to infect the third travel ban that he issued and that the Court upheld. Michael Dorf and I have both observed that the supposedly offensive remarks by the lone commissioner were not actually offensive at all. He said that people have historically committed atrocities and invoked religion as the basis for the atrocities. That is not only not biased but a plainly accurate statement: the Spanish Inquisition and the Crusades are just two examples. The man also said that it is despicable when people invoke religion as a justification for hurting others. Well, it is, isn't it? If someone excluded a customer from his store on the basis of race and invoked some passage from the Bible about the curse of Ham or the creation of white, black, red, and malay, to remain separate, most people would call that despicable. No religious bias there.

It is useful to think about one of MC's arguments that the Court felt no need to consider (yet). The argument is that applying the anti-discrimination law to MC would discriminate against it on the basis of religion. I had a conversation with someone around the time that the case was argued. He said that both sides have a good claim of discrimination. I asked what sort of discrimination claim did MC have? He said that the claim was that Colorado was discriminating against MC. I asked on what grounds anyone would claim that Colorado was discriminating, when it was simply applying anti-discrimination law to someone who happened to be acting on the basis of a religious motive. He just shook his head and repeated that that's what people were saying.

The argument that MC made grew out of an experiment that tested the Colorado Civil Rights Commission that had found MC "guilty" of anti-gay discrimination. In the experiment, a religious tester named William Jack approached other bakers and asked them to prepare cakes bearing anti-gay religious messages. These other bakers, who happily bake cakes bearing friendlier religious messages, refused to bake anti-gay cake. Yet the Colorado Civil Rights Commission was unwilling to find that the other bakers had engaged in anti-religion discrimination. MC then maintained (and Justice Gorsuch, in his concurrence, agreed with the claim) that by targeting MC for allegedly anti-gay discrimination while refusing to conclude that the other bakers had engaged in anti-religion discrimination against Jack, the Commission was itself applying the anti-discrimination law in a discriminatory fashion, favoring anti-religious over pro-religious but anti-gay behavior.

To make a simpler version of this argument, imagine that Cakeshop A refused (for Jewish religious reasons) to sell a bagel to a gay person, while Cakeshop B (for Christian religious reasons) refused to sell a bagel to a Jew. Here it would be apparent that A is engaged in anti-gay discrimination and that B is engaged in anti-Jewish discrimination. If the State, however, chose to discipline A but not B, the State would be itself engaged in anti-Jewish discrimination that might taint its disciplining of Jewish Cakeshop A for anti-gay discrimination.

The only problem with applying this argument to the MC/Jack experiment is that what the supposedly anti-religious bakers did--refusing to sell cakes with anti-gay religious messages on them--cannot cannot plausibly be characterized as anti-religious discrimination when the supposed discriminators were happy to attach kinder religious messages to a cake. The bakers had no problem with religious messages on cakes or with religion. The problem was with homophobic messages, and the bakers would have refused to put any homophobic message on a cake, secular or religious. These were not (so far as the record reveals) atheist bakers, just tolerant ones.

Now I get it that MC believes that the sort of tolerance practiced by the other bakers violates Christian principles. But that does not mean that practicing tolerance in the way that the other bakers did constitutes any kind of anti-religious discrimination. Among religious Jews, some (Ashkenazi Jews) take the view that legumes (including all types of beans, corn, lentils, rice) may not be eaten on Passover; others (Sephardic Jews) take the view that legumes are permissible on Passover. If an Ashkenazi Jew (Chaim) refused to allow a Sephardic Jew (Shamli) to bring a humus-matzoh sandwich into Chaim's shop because of Passover, that would not constitute anti-Sephardi or anti-semitic discrimination, just anti-chickpea discrimination, which is legal.

Given how frivolous it is to argue that the Colorado Civil Rights Commission discriminated against religion by distinguishing MC (which had discriminated on the basis of sexual orientation) from the other bakers (who had rejected anti-gay messaging that happened to have a religious source), it seems that something else was going on. MC wanted to be able to refuse to sell a wedding cake to a same-sex couple, and MC's supporters were performing experiments that might enable it to do so. In real life, after all, it is probably the extremely rare customer who orders a cake with Bible-sourced anti-homosexuality icing on top. Phillips, the owner of MC, likely felt discriminated against before Jack's laughable experiment; he felt that way because he perceived himself to be wronged by application of a law--even a law that neutrally applies to everyone--that might force him to sell wedding cakes to same-sex couples.

There is an argument for the position that applying anti-discrimination law in a neutral fashion may discriminate against religious people, but it is ordinarily liberals who make this argument. The argument is one from disparate impact.

Ordinarily, proving discrimination involves demonstrating that the alleged discriminator intentionally treated someone differently (worse than someone else) on the basis of his membership in one group rather than in another, when such groups fall into a category that the law designates as an improper basis for imposing burdens or affording benefits. Concretely, this means that if a restaurant seats some people before others because the first group is white or Christian or male and the second is not, then the restaurant is discriminating on the basis of race, religion, or sex, in violation of federal civil rights law. Such discrimination is "disparate treatment" because it intentionally treats some worse than others. If, on the other hand, the restaurant seats first those people who arrive first, then this policy is lawful, even if one racial, religious, or gender group tends to be earlier than the other. A disparate impact (or different effect), in other words, does not amount to discrimination.

In the employment discrimination context, federal law provides more expansive protection. This means that not only is it unlawful to fire a woman because she is female. It can also be unlawful to use a facially neutral measure to determine whom to fire. If an employment, termination, or job advancement or demotion criterion has the effect of burdening one group (such as African Americans) over another group (such as whites), the employer must justify the measure as having some legitimate business rationale. If it cannot do that, then it is liable for discrimination. Conservatives typically oppose this approach to discrimination law, because it highlights equal outcomes rather than focusing exclusively on what they call equal opportunity (and what others might call status-quo-entrenching disparities in life's opportunities).

In Washington v. Davis, the U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment--the constitutional right to equality--applies only to disparate treatment (purposeful discrimination), not to disparate impact. This means that if the government employs some facially neutral program that advantages whites over blacks (or Christians over Muslims or men over women), the disparate consequences that follow do not signify a constitutional violation. To take some examples, a voter I.D. law or a literacy test or a poll tax might burden one group's or another's access to the franchise, but it does not--absent proof of discriminatory purpose--violate the constitutional equality rights of the excluded or burdened group. And in McCleskey v. Kemp, the Court held that even if juries consistently impose the death penalty most frequently against African Americans who kill whites, that does not mean that the administration of the death penalty violates the Equal Protection Clause.

The disparate treatment approach is quite central to the way in which conservatives have been inclined to think about discrimination almost from the moment that civil rights laws came online. As early as the mid-1970's, only a decade after passage of the federal Civil Rights Act, an applicant to U.C. Davis Medical School brought a lawsuit complaining of race-based discrimination after the school twice rejected him. The U.S. Supreme Court ruled in Bakke's favor, in Regents of the University of California v. Bakke, holding that reserving some spaces in a class for people who, up until a decade earlier, could have been lawfully excluded from the class, constituted illegal race discrimination. This meant that disparate impact--the fact that applying the school's facially neutral criteria would result in a disproportionately white entering class--was not cognizable under the Equal Protection Clause. At most, disparate impact might serve as evidence of an illicit discriminatory purpose, but only proof of such a purpose would show a constitutional violation. The law, in the words of some conservatives, assures you equal treatment but not equal outcomes. Red-baiting conservatives said and continue to say that only communism aims at assuring people equal outcomes.

Would religious discrimination follow this same path? In a number of the cases, like Sherbert v. Verner, the Supreme Court had taken more of a disparate impact approach to the Free Exercise Clause of the First Amendment. It held that if a law or government action had a disproportionately harmful impact on religious people or members of a particular religion, the government had an obligation to accommodate the person suffering the harm, within reason. If you observed a religion that required you to fast on a special holy day that often occurred in the middle of the work week, your government employer might have an obligation to give you the day off for your holiday. This would be the case, moreover, notwithstanding the fact that the government never intended to burden the practice of your religion in requiring that everyone come to work Monday through Friday. The Court thus interpreted the right to freely exercise your religion as a right to receive accommodation rather than simply a right to be free of purposeful interference.

In Employment Div. v. Smith, however, the Court changed course on the Free Exercise Clause. The case involved a Native American man who had used peyote for religious reasons and wished to avoid a resulting benefits penalty. The Supreme Court said that so long as the government had applied a facially neutral criterion without discriminatory purpose, it did not violate the Free Exercise Clause to penalize a religious ritual. That is, if the government employer targeted the employee on the basis of his having violated the drug laws (by using peyote), and not because the employee was practicing a Native American religious ritual in doing so, then the government had done nothing even presumptively unconstitutional. The Court did provide the caveat that if the government provided numerous exceptions to an allegedly neutral rule but not the exception sought by the religious person, then that would qualify as religious discrimination in violation of the Free Exercise Clause.

Though religious freedom has again come to mean something different today, it was in 1990 unsurprising that Justice Scalia wrote the opinion for the Court. His approach to free exercise fit perfectly with disparate treatment thinking about civil rights more generally. Nobody is entitled to enjoy the same amount of freedom or the same education or the same kind of job as everyone else. That would be an equality-of-outcome regime. People are instead entitled to be free of purposeful discrimination on the basis of race, religion, etc. The fact that you consistently end up on the bottom of the social, income, professional, or other ladder may be regrettable, but if no one intentionally placed you there, then you have no cause of action. If your Sabbath is on Saturday but your government job requires you to work on Saturday, the Constitution affords you no protection, as long as your employer is not intentionally interfering with your day of rest.

In theory, this approach remains the law today, although it may be in doubt. This is the regime under which Masterpiece Cakeshop challenged the decision of the Colorado Civil Rights Commission, believing--I have suggested--that applying an anti-discrimination law to a bakery that, for religious reasons, refused service to people planning same-sex weddings violates the Free Exercise Clause of the First Amendment. Putting aside the absurd experiment-based argument that we discussed above, then, it looks like MC believed that the Colorado Civil Rights Commission had engaged in religious discrimination against MC simply by concluding that the cakeshop had violated state anti-discrimination law protecting a gay couple and would be required to stop discriminating. To put this in the affirmative, the cakeshop asserted a right to refuse to sell a wedding cake to a same-sex couple and regarded any efforts to deny that right as discrimination.

The Supreme Court did not face this underlying question. And the claim itself is confusing, at first glance. How is anyone discriminating against the bakery by ordering the bakery to stop discriminating against gay people? MC did not suggest, after all, that the Colorado Civil Rights Commission was allowing secular bigots to discriminate against gay people while singling out religiously motivated anti-gay discrimination for penalties. Are we honestly supposed to think that enforcing the law equally against everyone constitutes anti-religious discrimination whenever the law happens to affect someone who violates the law out of religious conviction? How would that work?

That would work exactly like a disparate impact regime. A law might be neutral in both purpose and language. It might say "no one may discriminate on the basis of sexual orientation." But people who feel that their religion compels them to discriminate on the basis of sexual orientation, people who believe that selling a wedding cake for a same-sex wedding renders them "accomplices" in the sin of same-sex marraige, will suffer more from the enforcement of the law than people who do not observe such a religion. It is easy for a non-religious person to serve people regardless of their sexual orientation, but a religious person who wants to avoid endorsing a sin cannot as easily comply with the rules.

Just to get a sense of what such a robust disparate impact--equality of outcomes--regime would require, imagine the following scenario. Bob Jones opposes interracial marriage on religious grounds. An interracial couple enters Jones's cakeshop and ask for a wedding cake. He tells them that he would happily sell them a bagel or some cookies but that he feels that selling them a wedding cake would make him an accomplice to interracial marriage under his religion and that he would not do it. Must the federal public accommodations law give way to Jones's religious right to racially discriminate?

I bring up racial discrimination because some people have a hard time with the idea that the law which so recently approved of incarcerating people for homosexual sodomy now demands that Christian bakers sell gay couples cakes to celebrate their weddings. It was not so long ago that our various religions--those that continue to stigmatize LGBTQ people--stigmatized African Americans as well. The judge who convicted the Lovings of a felony for interracial marriage (in a case that eventually led to the announcement of a right to such marriage and of the principle that a prohibition on interracial-marriage amounts to racial discrimination) said the following in defense of his position: “Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents,” the judge wrote. “The fact that he separated the races shows that he did not intend for the races to mix.”

Regardless of what one thinks about disparate treatment versus disparate impact, it is important to understand where each of these concepts leads. Conservatives routinely defend the narrow application of race discrimination principles to cases in which someone has deliberately singled out someone else on the basis of race. No one has the right to have everything work out the way they want, they say, so long as the ground rules are neutral and not motivated by race. In keeping with this thinking, then, perhaps we will see the ascendant conservative majority on the Supreme Court roundly reject the assertions of entitlement to religious exemptions from the laws that govern everyone and that call for civility, respect, and sincerity in the marketplace. Or if not, then perhaps the conservative Court will begin to see the merit in outcome-oriented affirmative action programs that aim to rectify centuries of anti-black violence, servitude, and subordination. Conservatives fond of citing neutral principles will need, I suppose, to pick their poison.