Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy and directs students in the Religious Liberty Appellate Clinic at the University of St. Thomas School of Law in Minnesota. He is a religious freedom scholar whose numerous publications include approximately 60 briefs in the U.S. Supreme Court and lower courts.
This week the Supreme Court hears arguments in the Masterpiece Cakeshop case, in which baker Jack Phillips, sued for sexual orientation discrimination, asserts a First Amendment right to refuse “to design and create a cake to celebrate [plaintiffs’] same-sex wedding” (the lower court’s words).
We filed an amicus brief supporting Phillips on behalf of Jewish, Mormon, and Protestant organizations. The brief argues that recognizing a carefully defined right in circumstances like Phillips’s, while applying nondiscrimination laws in most cases of commercial services, would appropriately protect both sides in the conflict between same-sex marriage and religious liberty rights. In earlier briefs and articles—speaking for ourselves, not for the amici in Masterpiece—we have urged constitutional protection for both rights.
Phillips has emphasized a free speech argument; our brief emphasizes another point. Colorado officials refused to protect Phillips’s religious objection to designing a cake celebrating a same-sex marriage. But around the same time, they protected several bakers who were charged with anti-religious discrimination when they refused to design a cake with a quote from Leviticus condemning homosexuality. This unequal treatment of conscientious objections, discriminating between squarely opposite sides of a deeply divisive moral issue, contravenes the Free Exercise Clause principle that laws be “neutral [toward religion] and generally applicable” and triggers strict scrutiny, under two Supreme Court decisions, Employment Division v. Smith and Church of the Lukumi v. Hialeah.
- Masterpiece tests the meaning of “neutral and generally applicable.” The state and the plaintiffs argue that a law violates that standard only if it singles out religious conduct for regulation or displays anti-religious animus. That reading is far too narrow, as we’ve detailed in the brief and elsewhere. If the government recognizes even a small number of exceptions for secular conduct and refuses to recognize an analogous exception for religiously motivated conduct, the regulation is not generally applicable.
This broader interpretation has been adopted by four federal courts of appeals and several other state and federal courts. None of those decisions required “targeting” religion in the sense of singling it out for regulation. The most prominent example is Fraternal Order of Police v. Newark, written by Samuel Alito, then a Third Circuit judge. A Muslim policeman challenged the police department’s ban on wearing beards; the department had allowed a medical exception, primarily for officers with a skin inflammation caused by shaving. That single exception, the court said, made the law non-generally applicable. The court quoted and followed the Supreme Court’s reasoning in Lukumi: the government impermissibly “‘devalues religious reasons for acting’” when it “‘judge[s] them to be of lesser importance than nonreligious reasons.’”
Such devaluing can occur even when only one or a few other interests are left unregulated. When the government deems some private interests sufficiently important to protect and others insufficiently important, it should treat religious exercise like the important interests. The constitutional text deems religious exercise important, not unimportant.
- Here, Colorado deemed that refusing to provide a cake celebrating a same-sex wedding was sexual orientation discrimination, but that refusing to provide a cake with a religious denunciation of same-sex relationships was not religious discrimination. This distinction cannot stand: Both bakers declined to produce a message they found objectionable, a message associated with a protected class of customers. It is no answer to say, as the state court did, that the protected bakers objected solely to the derogatory message and would provide other goods to Christians. Phillips made clear that he would provide other goods to same-sex couples. Moreover, Colorado’s regulations prohibit discrimination not only against religious affiliation, but against “all aspects of religious beliefs, observances or practices,” including “the beliefs or teachings of a particular religion, church, denomination or sect.” The protected bakers refused the customer’s request because of the particular belief it reflected.
Colorado may determine that Phillips’s refusal violated the nondiscrimination statute. But it may not interpret religious discrimination narrowly (and contrary to regulations) to protect the conscience of bakers with whom the state agrees, and then interpret sexual orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such selective interpretation is not neutral or generally applicable; it must satisfy strict scrutiny.
- The Supreme Court can protect Phillips without creating significant holes in public accommodations laws. First, nondiscrimination laws will qualify as “neutral and generally applicable” if they are applied evenhandedly and do not adopt significant comparable exceptions. Strict free exercise scrutiny applies here not because Phillips objected, but because Colorado protected the other bakers’ comparable objection.
Second, Phillips’s objection is circumscribed. He claims no right to refuse to serve gays and lesbians generally, only the right to refuse to send a message celebrating a particular event, the wedding. The wedding context not only intensifies the religious nature of Phillips’s objection (given the historical intertwining of marriage and religion and his belief that marriage is inherently religious); it also diminishes the state’s regulatory interest. Opponents strain to analogize Phillips’ objection to a Jim Crow restaurant refusing to serve blacks, or a fundamentalist Christian bank refusing to handle accounts for women. Those objections, subjecting customers to ongoing service denials, would indeed implicate the compelling interest in ensuring that people in protected classes have access to the marketplace. But Phillips’ objection to serving a wedding creates only a one-time denial. And to prevent that harm, the state seeks to impose on Phillips a far greater burden: either violating his conscience repeatedly, whenever a same-sex couple requests a cake, or leaving the wedding cake business.
The harm to the couple here is also limited because numerous other bakers were easily available in Denver. Ensuring access to goods is at stake when the baker is large, or when no others are readily available. But the only harm here was dignitary: the offense the customer feels at being turned away. First Amendment case law makes clear—in the flag-burning cases, among others—that offensiveness is not a sufficient interest to justify suppressing expression or expressive conduct. Purely dignitary harm is no more compelling an interest in a First Amendment free exercise case than in a free speech case.
By recognizing a carefully defined right for Phillips, the Supreme Court can ensure meaningful protection for both same-sex couples and religious dissenters.