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The Broader Implications of Masterpiece Cakeshop BYU Law Review Volume 2019 Issue 1 Article 7 Summer 9-1-2019 The Broader Implications of Masterpiece Cakeshop Douglas Laycock Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Law Commons Recommended Citation Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167 (2019). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2019/iss1/7 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 004.LAYCOCK_FIN.DOCX (DO NOT DELETE) 8/13/19 3:41 AM The Broader Implications of Masterpiece Cakeshop Douglas Laycock* CONTENTS I. THE DOCTRINAL BACKGROUND OF THE FREE EXERCISE CLAUSE .................... 170 II. THE SECULAR EXCEPTION IN MASTERPIECE CAKESHOP ................................. 179 III. RATIONALIZING UNEQUAL TREATMENT ...................................................... 187 IV. CONTINUING LITIGATION ........................................................................... 196 V. CONCLUSION—THE BIGGER PICTURE ........................................................... 202 In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1 the Supreme Court held that on the facts there presented, the Free Exercise Clause protected a wedding-cake baker who conscientiously objected to making a cake for a same-sex wedding. The decision has been widely described as a very narrow ruling on odd facts.2 My central claim in this Article is that the opinion has much broader implications than have been recognized. * Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies, University of Virginia, and Alice McKean Young Regents Chair in Law Emeritus, University of Texas. This Article is based on the First Annual Religious Liberty Lecture at Brigham Young University Law School, on September 12, 2018. Portions of this Article draw from an amicus brief and blog posts co-authored with Professor Thomas C. Berg. All websites were last visited on June 9, 2019. Perma links have been provided where possible. 1. 138 S. Ct. 1719 (2018). 2. See, e.g., KAREN MOULDING & NATIONAL LAWYERS GUILD LESBIAN, GAY, BISEXUAL RIGHTS COMMITTEE, SEXUAL ORIENTATION AND THE LAW § 11:1 (Oct. 2018 Update) (“the decision on extraordinarily narrow grounds actually proved, at least in the immediate debate, to be a dud”); Rodney W. Harrell, State Religious Free-Exercise Defenses to Nondiscrimination Laws: Still Relevant After Masterpiece Cakeshop, 87 UMKC L. REV. 297, 314 (2019) (“the Court resolved this case narrowly on facts that are not likely to be repeated”); Adam Liptak, In Narrow Decision, Supreme Court Sides with Baker Who Turned Away Gay Couple, N.Y. TIMES, June 4, 2018, https://www.nytimes.com/2018/06/04/us/politics /supreme-court-sides-with-baker-who-turned-away-gay-couple.html [https://perma.cc/K WV6-Z6Z3]; Eugene Volokh, The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved, REASON: THE VOLOKH CONSPIRACY (June 4, 2018, 10:49 AM), https://reason.com/volokh/2018/06/04/the-masterpiece-cakeshop-decision-leaves 167 004.LAYCOCK_FIN.DOCX (DO NOT DELETE) 8/13/19 3:41 AM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2019 I do not mean merely that a narrow judicial statement of a new right may evolve over time into a much broader right, although that is certainly true.3 And I do not mean merely that Justice Kavanaugh is likely to be more sympathetic to the free exercise of religion, and less sympathetic to gay rights, than Justice Kennedy would have been, although that is probably also true. I mean that the Masterpiece opinion, as written, combined with a bit of savvy lawyering on the part of those representing conscientious objectors, logically leads to a general protection for conscientious objectors, at least in religiously important contexts such as weddings. Since same-sex marriage first became a prominent public issue in 2004, I have advocated for marriage equality with religious exemptions—full legal equality for same-sex marriages, with exemptions that protect non-profit religious organizations from having to celebrate or recognize those marriages, and with religious exemptions for very small for-profit businesses from having to assist with the wedding or its celebration so long as other providers of the same goods or services are readily available.4 I have never doubted that the conscientious objectors who claim this exemption are discriminating on the basis of sexual orientation, but I have argued that they should have an affirmative defense to protect the free exercise of religion. The solution to this conflict is to protect the rights of each side—the right of both same-sex couples and conscientious objectors to live their own lives by their own deepest values and in accord with their deeply felt identity. As has been explained elsewhere, sexual minorities and religious minorities make fundamentally similar claims on the larger society.5 [https://perma.cc/ZB43-VSF8]; Amy Howe, ScotusBlog, Opinion Analysis: Court Rules (Narrowly) for Baker in Same-Sex-Wedding-Cake Case [Updated], (June 4, 2018, 4:07 PM), https://www.scotusblog.com/2018/06/opinion-analysis-court-rules-narrowly-for-baker -in-same-sex-wedding-cake-case/ [https://perma.cc/VWE6-RBFR]. 3. Thomas C. Berg, Masterpiece Cakeshop: A Romer for Religious Objectors?, 2017–2018 CATO SUP. CT. REV. 139. 4. This advocacy appears in articles, briefs, and letters to legislators and other policy makers. These materials are collected in DOUGLAS LAYCOCK, RELIGIOUS LIBERTY VOLUME THREE: RELIGIOUS FREEDOM RESTORATION ACTS, SAME-SEX MARRIAGE LEGISLATION, AND THE CULTURE WARS 763–976 (2018), and DOUGLAS LAYCOCK, RELIGIOUS LIBERTY VOLUME FOUR: FEDERAL LEGISLATION AFTER THE RELIGIOUS FREEDOM RESTORATION ACT, WITH MORE ON THE CULTURE WARS 695–863 (2018). 5. Douglas Laycock, Liberty and Justice for All, in RELIGIOUS FREEDOM, LGBT RIGHTS, AND THE PROSPECTS FOR COMMON GROUND 24, 26–27 (William Eskridge & Robin Fretwell Wilson eds. 168 004.LAYCOCK_FIN.DOCX (DO NOT DELETE) 8/13/19 3:41 AM 167 The Broader Implications of Masterpiece Cakeshop Government should not interfere with sexual orientation, and it should not interfere with the exercise of religion, without the most compelling reasons. The Masterpiece opinion does not go so far, but it is consistent with this view. The Court set the right tone, insisting on the need to respect the rights and dignity of both sides. “[G]ay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts.”6 “At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [T]he Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.”7 The Colorado Civil Rights Commission and the Colorado Court of Appeals had failed to treat the baker’s religious commitments with either neutrality or respect, and their obvious bias violated the Free Exercise Clause.8 This bias was manifested in hostile comments and in unequal treatment of customers and bakers on opposite sides of the moral debate over same-sex marriage. Savvy officials can suppress their hostile comments. But savvy conscientious objectors can smoke out unequal treatment by sending testers to request goods and services that retailers who support same-sex marriage are likely to refuse. A state that protects these liberal retailers while penalizing religious conscientious objectors violates the Free Exercise Clause under Masterpiece, and on reasonable readings of the Court’s recent free-exercise precedents. 2018); Thomas C. Berg, What Same-Sex-Marriage and Religious-Liberty Claims Have in Common, 5 NW. J.L. & SOC. POL’Y 206 (2010); William N. Eskridge, Jr., A Jurisprudence of “Coming Out”: Religion, Homosexuality, and Collisions of Liberty and Equality in American Public Law, 106 YALE L.J. 2411, 2416–30 (1997). 6. Masterpiece, 138 S. Ct. at 1727. 7. Id. at 1727, 1731. 8. Id. at 1729–32. 169 004.LAYCOCK_FIN.DOCX (DO NOT DELETE) 8/13/19 3:41 AM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2019 I. THE DOCTRINAL BACKGROUND OF THE FREE EXERCISE CLAUSE Deeper analysis of Masterpiece has to begin in 1990, with Employment Division v. Smith.9 Smith changed the law of free exercise in important ways, but 29 years later, the meaning of that change remains unsettled. Mr. Smith consumed peyote at a worship service of the Native American Church,10 where the central ritual is the supervised consumption of peyote in a highly structured ceremony.11 Hallucinogenic drugs have been used for religious purposes throughout human history and all around the world.12 Peyote is a naturally occurring hallucinogen. One consumes peyote by eating the bud of a cactus plant; it is tough and hard to chew, and it often causes nausea or vomiting.13 So there has never been a significant recreational market for peyote. But American Indians were using it for religious purposes when the earliest Spanish explorers arrived, and probably for millennia before that, and they still are.14 The Native American Church teaches total avoidance of all other drugs, including alcohol, and is generally viewed as a positive influence in the lives of its members.15 Religious use of peyote by the Native American Church has long been exempt from the federal drug laws,16 and after the Court’s decision, Congress extended the protection to all American Indians and preempted contrary state law.17 Smith was fired when his supervisor learned that he had attended the peyote service. He did not sue over his discharge, but 9. 494 U.S. 872 (1990). 10. Id. at 874.
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