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.


**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.