Common Sense, Legal Doctrine and Wedding Cakes

By Eric Segall

Next term the Supreme Court will hear a case brought by a baker who refused to sell a wedding cake to a same-sex couple. The baker argues that a Colorado non-discrimination law which makes it illegal to refuse to do business with people because of their sexual orientation violates his first amendment rights to freedom of speech and religion. Most scholars agree that the speech claim raises more difficult questions than the religion one, but this post focuses on the baker's claim that the Colorado non-discrimination law as applied to him is inconsistent with his right to the "free exercise of religion."

As a constitutional matter, everyone agrees that the free exercise clause prohibits the government from punishing or taxing people because of their religious beliefs or practices (absent the most compelling of government interests). The harder question under the free exercise clause is whether people are entitled to exemptions from generally applicable laws (like Colorado's non-discrimination law) that were not passed to target religion but which burdens someone's exercise of religion.

For most of this country's history, the answer has been such laws do not implicate the first amendment at all. There was a short period between 1963 and 1990 when the Supreme Court held in a few cases that religious exemptions from generally applicable laws were required, but in 1990 Justice Scalia wrote a majority opinion in Employment Division v. Smith closing that door and saying generally applicable laws that burden religion do not implicate the free exercise clause at all unless their purpose is to harm a specific religious group. The baker is not claiming that Colorado's non-discrimination law was passed to hurt religious exercise.

After Smith, Congress and many states passed laws saying that, as a statutory matter, generally applicable laws that substantially burden the free exercise of religion must serve a compelling interest and be narrowly drawn to further that interest. The purpose of the federal law, the Religious Freedom Restoration Act (RFRA) was to restore as a statutory entitlement the constitutional right the Court had abandoned in the Smith case. The Court later held that the federal RFRA is unconstitutional as applied to state laws but is valid as to federal laws (though later enacted more limited federal laws regarding religious exemptions from state laws pertaining to prisons and land use are still valid).

Unlike most states, Colorado does not have a state RFRA, so the only way the baker can prevail on his religion claims is if the Court overturns the Smith decision. At a law conference on Monday where we discussed the baker case, one law professor said he heard his colleagues opine that maybe Justice Kennedy, who joined the Smith case, has decided he was wrong there and wants one of his final opinions to be overturning Smith and ruling in favor of the baker. Because Justice Kennedy is the author of every Supreme Court pro-gay rights decision ever, he would have the most credibility of any Justice to write such an opinion. I certainly hope this dire speculation is incorrect.

Even though Colorado does not have a state RFRA, there have been other challenges to non-discrimination laws brought by people who don't want to sell their products to same-sex couples. In addition, of course, the Supreme Court held that the Affordable Care Act's requirement that companies provide contraception to women at no cost violated Hobby Lobby's rights to exercise religion under RFRA. Although technically that lawsuit was against a corporation, which quite obviously can't exercise religion, the owners of Hobby Lobby can exercise religion, and this post will assume that the lawsuit really involved their rights, which is the very "fiction" the Court adopted in Hobby Lobby.

The issue I want to focus on is whether people who are selling a commercial product for a profit, or who are making business decision for for-profit businesses such as deciding what kind of health insurance to provide their employees, are actually "exercising religion" under the first amendment, the federal RFRA, or state RFRA's.  The answer is no but for some reason many law professors seem to think the answer is yes. I know this because when I have argued to non-lawyers that baking a cake is not an exercise of religion, folks nod their heads, but when I have made this argument to constitutional law professors, both in person and on-line, I get yelled at. I find that disconnect both amusing and not amusing.

When a baker who bakes cakes for a living bakes a cake for a wedding, he is not exercising religion, he is baking a cake. We know this because it is obvious. When I go swimming, or appear at a law conference to talk about the separation of church and state, or make business decisions about my employees' health insurance, I am not exercising religion. This idea should not have to be explained.

The baker's religious conscience might be offended if forced to sell his cake to a wedding his religion objects to. Similarly, some people's religious views might be negatively impacted when they swim in a public pool where people are wearing skimpy bathing suits. Another person's religious views might be impacted if men and women sit together to listen to his views at a law conference. But, in all three examples, baking, swimming, giving a law talk, no one is "exercising" religion.

The way that law professors try to avoid the common sense conclusion that baking a cake for profit is not exercising religion is to point to some hard cases where religious belief and religious exercise might merge. Before I detail those arguments, it is important to remember that virtually all legal rules give rise to hard, borderline cases, as the quick perusal of any law school casebook in any area of law will show quickly. The fact that there may be some borderline cases where exercise and belief merge does not mean, except in the crazy world of lawyers, law professors, and judges, that baking cakes for profit is "exercising religion." Furthermore, creative lawyers can always muck things up. The line between mucking up and serious hypothetical cases testing the limits of a principle can at times be a blurry one (which is why lawyers get paid the big bucks). But it is also often possible to tell the difference between the two.

With that in mind, many law professors argue that some devout people believe that they exercise religion 24 hours a day, 7 days a week, and when forced to comply with laws that offend their religious conscience, they cannot "exercise" their religion." This argument might make sense as a theological matter (I don't judge) but should be obviously wrong as a legal matter. The right to the free exercise of religion assumes the actor is performing a religious act, ritual, or ceremony. The definition of "exercise" presupposes some action, movement, or exertion, and in our context, some religious action, movement or exertion. Selling a product for profit to the public is not a religious action, movement, or exertion, even if being forced to do so bothers your religious conscience.

A baker whose business is selling cakes primarily to a church, temple, or mosque for religious ceremonies of the same faith as the baker, might see his baking of cakes as assisting in that religious ceremony, and thus exercising religion. But that scenario does not come close to resembling the facts of any case currently out there involving a business' refusal to sell a commercial product to a same-sex couple, and thus is more akin to mucking up than a serious obstacle to all of us agreeing that baking a cake for profit is not a religious exercise. Similarly, the fact that people who work for official churches deciding what kind of health insurance to provide to its religious employees might be an exercise of religion is worlds away from the conclusion that officers of a billion-dollar for-profit company making decisions about their employees' health plans are exercising religion, unless we live in la la land.

Some people feel they must wear certain garments or refrain from engaging in certain activities in order for them to follow their faith. For example, the Supreme Court once heard a case brought by a psychologist in the air force who wanted to wear his yarmulke at all times including when treating his patients. The Court ruled against him on other grounds (Congress eventually created an exemption for this), but obviously when the plaintiff was performing his duties he was not exercising religion. But just as obviously, his wearing his yarmulke was exercising his religion. Thus, when the government says he can't wear it, his exercise of religion is burdened in a way inapplicable to our baker.

Many other examples can be given--the hardest one being pacifists whose religious views prevent them from assisting in a military effort. Fighting in a war is not exercising religion, but making someone fight whose religion categorically prohibits such an activity might burden his ability to exercise his religion. If that is true, the argument goes, someone whose religious faith prevents him from assisting in same-sex weddings has his religious exercise burdened if forced to bake a cake for a same-sex wedding.

The pacifist objector, I admit, is a hard case. As a legal advocate for the government, I would argue that, if we are going to allow the religious objector to avoid military service, the First Amendment and the Equal Protection Clause require the same opt-out for a secular conscientious objector--otherwise the government would be violating the Establishment Clause of the First Amendment. Therefore, if the Quaker is allowed to avoid conscription, it is not because he is exercising religion when serving in the military, but because we as a society have decided that people with sincere moral objections to fighting (whether based in faith or not) don't have to fight. The Supreme Court once had a similar case that largely supports this view.

But either way, fighting in a war on behalf of the United States is simply not a religious exercise even if the government decides as a matter of grace to allow those who object or religious grounds alone to be exempt. In other words, Colorado could probably pass a law allowing bakers to refuse to sell to same-sex couples if they object on religious grounds, but that does not mean that the baker is exercising religion when baking cakes, a necessary predicate for finding the baker has rights under the free exercise clause (if Smith is overturned), or under state RFRA's as currently written.

Ultimately, my answer is that creative lawyers can always muck things up, and the Quaker hypothetical might at first glance slightly obscure what we all know or should know to be true: baking cakes for profit is not an exercise of religion. Why? Because plain old common sense tells us that selling goods for profit in the general marketplace is not an exercise of religion, even if many law professors might disagree.