The Ingredient for a LGBT Triumph?
Responding to: What the Masterpiece Cakeshop Decision Means for the Future
June 27, 2018
A number of pundits have portrayed the final decision of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission as a huge victory for religious liberty, while a few have raised doubts about that conclusion. I think the result was a victory for religious liberty in obvious ways, but that Justice Kennedy’s opinion might be more favorable to LGBT interests in the long run.
The baker’s win means religious freedom wasn’t dealt a fatal blow. The Court could have ruled decisively against Jack Phillips and set the precedent that generally applicable non-discrimination laws don’t run afoul of the First Amendment’s protections of religious free exercise or free speech. That seems to be how Justices Ginsburg and Sotomayor view the matter, and it might be how Justices Breyer and Kagan would rule given the right set of facts, i.e., a case without obvious religious animus. But the Court didn’t reach that result. Sometimes not losing can count as a victory. Religious liberty won this battle against the aggressive extension of non-discrimination law by not losing.
When one looks past that result, however, things don’t look as good for religious freedom. Justice Kennedy, in fact, might have advanced a novel reading of the Free Exercise Clause that could significantly curtail legislative efforts to shield religious individuals and institutions from LGBT non discrimination ordinances.
Kennedy imported from Establishment Clause jurisprudence the idea that government actors should be neutral toward religion. “The Colorado Civil Rights Commission’s consideration of this case,” Kennedy said, “was inconsistent with the State’s obligation of religious neutrality.” “When the Colorado Civil Rights Commission considered this case,” he continued, “it did not do so with the religious neutrality that the Constitution requires.” Kennedy concluded: “Given all these considerations, the Commission’s actions here violated the Free Exercise Clause . . . .”
Does the Free Exercise Clause now require the state to be neutral toward religion? In some Establishment Clause cases the Court has appealed to neutrality, but it usually has done so in the context of state benefits flowing to religious schools or organizations, e.g., the Court has asked whether tax-funded school voucher programs included religious schools on neutral grounds. (See, for example, Zelman v. Simmons-Harris .)
Regarding the Free Exercise Clause, precedents have focused on hostility toward religion. A law might meet the non-hostility doctrine by being neutral toward religion—this is basically what the Supreme Court said in Oregon v. Smith (1990) and found wanting in Lukumi Babalu Aye (1993). But the “nonpersecution principle,” to use Kennedy’s phrase from the latter case, was the underlying doctrinal standard, not neutrality.
“The state may not suppress or persecute or be hostile toward religion” is a very different doctrine than “the state must be neutral toward religion.” The former affords legislatures latitude to protect religious individuals and institutions by granting exemptions from generally applicable laws—the classic example is legal exemption for conscientious objectors from military service, a practice that dates back to the founding of the United States. The latter would prohibit laws that favor religion. State religious freedom restoration act laws that grant religious exemptions from burdensome but generally applicable laws pass the non-hostility doctrine. They may not pass the neutrality doctrine.
If Masterpiece Cakeshop marks a doctrinal shift from non-hostility to neutrality, the Court has fundamentally altered its interpretation of the Free Exercise Clause in a way that might significantly limit legislative efforts to shield religious individuals from LGBT nondiscrimination laws.
That is a big “if,” of course. The Court didn’t announce that it intended to make a doctrinal shift, and Justice Kennedy’s statements about state “neutrality” could be read to mean that the state can’t be hostile toward religion. When I brought this point to the attention of a preeminent church-state scholar, he responded, “I think Justice Kennedy (perhaps not realizing what he’s saying) doesn’t think that the Free Exercise Clause requires ‘neutrality’ in a way that calls into question religion-friendly exemptions.”
That analysis probably accurately captures Kennedy’s intentions. But if the Free Exercise Clause is interpreted to require state neutrality toward religion as Kennedy’s opinion makes possible, Masterpiece Cakeshop might include the main ingredient for a future triumph of LGBT rights over religious liberty.
EDITOR’S NOTE: A different version of this essay first appeared at amgreatness.com.
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Other Editorial Responses
July 2, 2018
By: Perry Dane