SCOTUS Takes Masterpiece Cakeshop v. Colorado Civil Rights Commission

On the last day of the term, the Supreme Court granted cert in Masterpiece Cakeshop v. Colorado Civil Rights Commission. It shouldn’t have. Objectively straightforward, the case involves First Amendment claims made by Masterpiece Cakeshop and its owner, Jack Phillips, which are foreclosed by existing precedent and have been rejected by every court, judge and agency to consider them.

The facts are simple and unfortunate. Jack Phillips owns a suburban Denver bakery, Masterpiece Cakeshop. Charlie Craig and David Mullins are a same-sex couple that married out of state and then returned to Colorado to celebrate their nuptials with friends and family. For the occasion, they sought a wedding cake. Unfortunately, they went to Masterpiece Cakeshop and were met by Phillips in the store. That’s where things went south. Craig and Mullins indicated that they wanted a cake for their wedding, without providing any additional details whatsoever. However, Phillips refused to serve them, without knowing any details about the cake they wanted. Phillips explained that he had a policy of not selling cakes for same-sex weddings, but that they could purchase something else there if they wanted. Oh.

Colorado has an anti-discrimination statute (“the Act”) barring discrimination in public accommodations on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry. Phillips and his bakery violated this statute by their behavior towards Craig and Mullins – that much is not disputed.

Craig and Mullins then filed a charge with the Colorado Civil Rights Division, which conducted an investigation and found that Masterpiece Cakeshop violated the Act. The Colorado Attorney General then filed an administrative action, wherein summary judgment was granted against Masterpiece Cakeshop. The company then appealed to the Colorado Civil Rights Commission and then to the Colorado Court of Appeals, losing all along the way. The Colorado Supreme Court denied the company’s petition for review. The company and its owner, Phillips, then petitioned for cert to the U.S. Supreme Court, which granted the petition last week after a whopping 14 re-lists. Phillips and his company make two claims: that the decision violates their rights of free speech and free exercise of religion under the First Amendment.

The free exercise claim is straightforward. In Employment Division v. Smith, 494 U.S. 872, 885 (1990), an individual was denied unemployment benefits after he was fired for the religious use of peyote. In rejecting the former employee’s Free Exercise claim, the Court found that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879. Thus, a generally applicable law such as one banning peyote does not violate the Free Exercise claim just because it happens to bar conduct that some engage in for religious reasons. Likewise, non-discrimination statutes such as the Colorado Anti-Discrimination Act do not target religion, they simply prohibit discrimination on the basis of a protected class. Said statutes are valid, neutral, and of general applicability. Countless similar anti-discrimination statutes across the country have been validated on that basis.

That Phillips, the store owner, doesn’t want to follow the law is irrelevant. Phillips argues that he believes that god would be displeased by Phillips’ participation in a same-sex wedding. That’s his right to believe that, but it doesn’t exempt him from anti-discrimination statutes. Some misguided people believe that god is displeased when a woman has a full-time job instead of being a housewife; but if a manager at Fedex Office refused to print all married women’s resumes on that basis, the Free Exercise claim would grant him no reprieve.

Jack Phillips is essentially asking the Supreme Court to punch a religion-sized hole in all anti-discrimination statutes, for everyone. This would have disastrous consequences. For example, a CEO buys into the disgusting stereotype that women are of inferior intellect and therefore he refuses to hire them? Well, under Phillips’ logic, as long as the CEO’s beliefs stem from his religious preferences, suddenly he would be free from the shackles of non-discrimination statutes. A restaurant doesn’t want to serve African-Americans? As long as his religion proscribes the mixing of races, then he is in the clear. Or, if Phillips wanted to refuse making cakes for interracial marriages, under his logic he could do that too. Obviously, this position is untenable.

Lastly, Phillips argues that various prior rulings in other cases by the Colorado Civil Service Commission render its application of the Act no longer one of neutral applicability, thus requiring strict scrutiny review. That argument was rejected repeatedly in the lower courts. Even if it is valid, however, the Supreme Court is not a court of error correction. Even if the Supreme Court was concerned regarding the Colorado Civil Service Commission’s past application of the otherwise lawful Act, this is hardly a reason to take the case; at best, even in that circumstance, the Supreme Court could have simply GVR’ed the case back to the Colorado courts on that issue. Simply put, the Supreme Court takes cases about the intersection of discrimination statutes and the First Amendment, not whether the Colorado Civil Service Commission may have erred in its application of law. That’s not what the Supreme Court is here for, and it says as such repeatedly. Indeed, Rule 10 of the Supreme Court Rules, “Consideration Governing Review on Writ of Certiorari,” states, “[a] petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

Then there’s the free speech claim. The only problem is that no speech is involved. Phillips was not asked to put specific words on a cake. He wasn’t asked even to make a specific design. He didn’t have any information except: gay wedding. On that basis alone, he refused to serve Mullins and Smith. The cake could have been plain white with no text. It could have been a pre-made sheet cake sitting in a display case. It could have been a cake design traditionally used for birthday parties. It didn’t matter to him. This demonstrates that it wasn’t the particular design or speech that Phillips objected to, it was the very concept of providing a cake – any cake – for a same-sex wedding. In fact, Phillips admits as such in his cert petition, indicating that he does not make cakes for same-sex weddings because “Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design.” The particular speech or design of the cake was irrelevant.

This case is about doing, not speaking. And Colorado is plainly allowed to regulate conduct to proscribe discriminatory behavior. “Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 390 (1992).

Phillips makes the argument that forcing him to make gay wedding cakes sends the message that he agrees with the concept of gay marriage. Again, examples demonstrate the fallacy of this argument. Could another baker refuse to serve an interracial couple because doing so might send the message that he or she agreed with interracial marriage? Could a KKK grand wizard who owns a diner refuse to serve African-Americans, since doing so might send the message that he didn’t support white supremacy? Countless examples exist to undercut Phillips’ flawed argument.

To be sure, the closer question is whether the Act could mandate specific speech on the cake. But that’s not what’s going on here. Phillips hadn’t agreed to bake the cake and then balked when instructed to put certain verbiage on the cake. He wasn’t asked to write “I support gay marriage” or “god loves gay marriage”. He was asked to make a cake; that many cakes happen to have expressive aspects is not dispositive, especially since Phillips refused the couple before knowing what if any speech or expression was actually involved.

Neither is it persuasive that Phillips is – as he says in his briefs – a “cake artist”. Phillips’ self-professed artistry doesn’t exclude him from anti-discrimination statutes. Do wedding dancers, or a wedding DJ, or a wedding caterer possess the constitutional right to only perform for Christian weddings, on the basis that they are artists who believed that God only prefers Christian weddings? Obviously not.

That’s why its so puzzling that the Supreme Court took this case. This case is easy, and any complicated aspects of it relate only to the application of facts to law. Again, a future baker in a similar situation would have a much more plausible case if he was asked to actually put pen to paper (or pastry bag to cake, as the case may be). There are indeed some interesting questions: When is business conduct sufficiently imbued with expression so as to trigger First Amendment protection? When can the free exercise of religion permit businesses to engage in otherwise-proscribed conduct? When do anti-discrimination statutes impermissibly infringe on First Amendment rights? Would Phillips possess a claim under a state or federal RFRA statute? However, these questions really just aren’t implicated here.

That four Justices took this case is troubling. That the case languished in re-list purgatory until after Justice Gorsuch took the bench is even more troubling. This suggests that before his arrival, the court felt that it would be headed for a 4-4 deadlock. Now, it looks like there may be five in Phillips’ favor. True, the Court could issue a very limited decision reversing and remanding based on some specific error it found in the Colorado courts’ reasoning or specific application of law. That might be one of the better-case scenarios at this point, and the Court has done this in some other cases recently, like Hernandez v. Mesa and Los Angeles v. Mendez. Or it could go the Trinity v. Comer route and include a footnote limiting the holding to the specific set of facts at issue. But as I said above, the Supreme Court really isn’t here to discuss the finer points of the logic of the Colorado Civil Service Commission. Thus, you have to think that the Court is ready to reach the merits of this case head-on, with at least a few of the Justices primed to rule in Phillips’ favor. That is nothing to celebrate.

Trinity Lutheran v. Comer: We Talkin’ About Playgrounds?

The Court ruled this week in Trinity Lutheran v. Comer, the church playground tire case that I previously wrote about. This post will discuss the majority opinion’s attempt – perhaps a futile one – to blunt the extent of its holding via what I’ll call a “limiting provision”, and I’ll discuss other cases where the Supreme Court has similarly attempted to artificially limit the scope of its holding essentially by saying as such, even if the actual rationale of the court suggests otherwise.

I. Trinity Lutheran: What’s Behind Footnote Number 3?

But first, some background. In Trinity Lutheran, a church applied for a state grant for reimbursement to buy tire scraps to use as a safe surface for its playground. What some might generously call the center of the Court – Chief Justice Roberts writing for Justices Kennedy, Kagan, and Alito (I know, I know, he’s not moderate, but he sure ain’t Justices Thomas or Gorsuch) – found that prohibiting Trinity Lutheran Church from the Missouri tire scrap program solely because it was a church ran afoul of the Free Exercise clause of the First Amendment. Justice Breyer, also certainly considered to be a moderate, concurred in the judgment only. Justices Ginsburg and Sotomayor dissented. That leaves Justices Thomas and Gorsuch, and it gets us to Footnote 3 of the majority opinion. Thomas and Gorsuch concurred with the entirety of Chief Justice Roberts’ majority opinion… except for footnote 3.

Footnote 3 stated, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” The intent of this footnote was clearly to placate the more liberal members of the majority. See, this case is seen by some as a wolf in sheep’s clothing, an attempt by the religious right to destroy the wall between church and state. The thinking goes, once the court blesses – indeed, mandates – government funding of a church, then the Establishment Clause ceases to have the same effect. Sure, this is about playgrounds, but the next case will be about government funding of prayer books, or religious schools, etc. Plus, the court is now requiring the government to pay churches; that money – while earmarked for playground tire scraps – can now be used for any religious purpose whatsoever. So, footnote 3 basically says, to paraphrase Allen Iverson, “we talkin’ about playgrounds.”

But is that actually persuasive? Just because the majority claims that the holding doesn’t apply to religious uses, that doesn’t mean the majority’s rationale wouldn’t also then apply to such uses in a later case. Essentially, all the Court is saying is that it isn’t right now applying its rationale to more religious uses of funds. The Court’s rationale in the case is that denying government funding based on religious status is subject to the “most rigorous scrutiny.” That test would presumably apply to any denial of government funds to religious organizations. Who says that avoiding Establishment Clause concerns is a compelling interest? So, Footnote 3 rings somewhat hollow.

That got me thinking – when has the Court as used similar limiting language in other opinions, and what has been the effectiveness? The two big cases that come to mind are Bush v. Gore and U.S. v. Windsor, the Defense of Marriage Act case. Both times, the Court’s attempts to limit its Opinion to its particular facts was not very effective, but its up for debate if it was actually intended to be, or whether it was a way of placating certain members of the Court.

II. Bush v. Gore: “You Guys Should Just Totally Ignore What We’re Saying Here.”

We all remember Bush v. Gore. Considered by many to be a disgracefully political moment for the Court, the case was technically about whether “the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Court found an Establishment clause violation, but instead of treating its opinion like any other, the Court tried to avoid giving precedential value to its own opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Being embarrassed about the logic of one’s argument typically doesn’t help the legitimacy of said argument, but hey, there was a presidential election to be decided.

Regardless of the Court’s intent, Bush v. Gore has now been cited repeatedly, and CaseText lists 337 cases referencing or citing to it. While that’s not nothing, another big case from 2001, Kyllo v. United States, has been cited 1,060 times, though that’s one with more applicability than Bush v. Gore. On the other hand, a big case from OT1999, Boy Scouts v. Dale, has only been cited 309 times. So, it’s fair to say that Bush v. Gore has indeed been cited with some degree of normalcy.

III. U.S v. Windsor: Justice Scalia Is Bad At Checkers And Worse At Chess

Then there’s U.S. v. Windsor, the DOMA case. There, the Court was tasked with determining whether a federal law not recognizing same-sex marriages violated the Equal Protection and Due Process clauses. Famously, after the Court provided a number of reasons why refusal to recognize same-sex marriages violated the Due Process Clause of the Fifth Amendment, the Court then ended its Opinion by stating, “This opinion and its holding are confined to those lawful marriages.” This was intended to mean that the opinion did not apply to states’ non-recognition of same-sex marriages and only applied to federal non-recognition.

This was laughably transparent at the time, and everyone and their mothers (plural) knew that the court was eventually going to find that states’ prohibition of same-sex marriage was unconstitutional. The Court just spent 25 pages (adeptly and convincingly) explaining the obvious reasons why refusing to recognize same-sex marriage was blatantly unconstitutional. Then the Court ends the opinion with, “oh yeah, we are only talking about the federal government here (wink).”

In his dissent, Chief Justice Roberts saw what was obviously going on, but didn’t take the bait. Seeing that lower courts would inevitably use the majority opinion’s logic in subsequent same-sex marriage cases against states unless the court’s limiting language was taken seriously, the Chief Justice tried to convince the world to take the majority at its word: “But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further… In my view, though, the disclaimer is a logical and necessary consequence of the argument the majority has chosen to adopt.” Ok, sure.

While the Chief Justice played chess, Justice Scalia played checkers. Justice Scalia essentially wrote future plaintiffs’ briefs for them, explaining how the rationale of the majority opinion could  in fact be applied in challenges to states’ same-sex marriage bans. He went so far as to cross out references to DOMA in the majority opinion and insert “the state’s laws”, thus demonstrating how the majority opinion really does demonstrate why same-sex marriages bans are unconstitutional. Pointing out the obvious – which everyone else was smart enough to understand but not verbalize – Justice Scalia’s dissent was ultimately used by countless lower courts to demonstrate why state same-sex marriage bans were indeed unconstitutional.

Honestly, I find it hard to believe that Justice Kennedy didn’t know at the time that he believed all same-sex marriage bans to be unconstitutional. After all, two years later to the day, he wrote his opinion in Obergefell striking down all same-sex marriage bans. More likely, the language in Windsor was intended to try and placate conservative justices. Obviously, it didn’t quite work, but it also didn’t matter.

IV. Alright, Back To Trinity Lutheran

This gets us back to Trinity Lutheran. I have a feeling that Footnote 3 was negotiated to placate Justice Kagan and possibly Justice Kennedy. The Court recently did something similar in LA v. Mendez, an excessive force case, where it had a random, un-numbered footnote basically saying that the Court wasn’t holding that the particular facts of the case constituted reasonable force; rather, if a lower court finds that the force used was reasonable, then the plaintiff had no other avenue of maintaining an excessive force claim.

It seems inevitable that the Court will again revisit the issue of governments refusing to fund religious organization’s religious use of funds, and the need to draw clear lines will become more important. So, the Court’s logic here may indeed be used later. The Chief Justice does that adeptly – using his own logic in a prior case as a jumping off point to ultimately do something big and conservative. For example, he used his own rationale in Northwest Austin v. Holder to ultimately strike down the Voting Rights Act’s pre-clearance provisions four years later in Shelby County v. Holder. Again, chess not checkers.

So, at this point, it remains to be seen what the ultimate effect of the Court’s Opinion in Trinity Lutheran will be, and same with Footnote 3. But, don’t be surprised if a few years down the line, the Chief Justice sheds that footnote and uses this case to find for religious institutions in cases down the road.

WHERE THE RUBBER MEETS THE ROSARY: The Supreme Court Hears Trinity Lutheran Church v. Comer

Does a playground for two-year-olds advance a religious purpose just because it is run by a church? Is the government justified in denying funding to a church to build that playground, even when the government would provide funding for the exact same playground if it were built by a secular organization? The case of Trinity Lutheran Church v. Comer, being heard this week at the Supreme Court, addresses these questions. In other words, when is a playground more than just a playground?

Used tire scraps – which can be recycled and turned into soft, safe surfaces for playgrounds – are instead routinely discarded in landfills. This not only creates unnecessary waste, it also means that playgrounds are instead covered in cement and other hard, unsafe surfaces for kids. In an effort to kill two birds with one stone, the state of Missouri created the Scrap Tire Grant Program (STGP), a program designed to reimburse non-profit who purchase used tire scraps for their playgrounds. Trinity Lutheran Church, which also runs a religious preschool and daycare center, applied to the STGP to obtain reimbursement for this very purpose.

Despite Trinity’s application ranking fifth among the forty-four applicants for a grant – high enough where the application was surely to be approved – the state of Missouri rejected Trinity’s bid. It did so solely on the basis that the Missouri Constitution forbids public funding of religious organizations. Trinity sued, claiming violations of the First Amendment’s Free Exercise clause and the Fourteenth Amendment’s Equal Protection clause, but it lost in both the district and circuit courts (the panel split 2-1). Cert was granted, and the Supreme Court hears argument this Wednesday, April 19th.

No one disputes that the funds would be used for a seemingly secular purpose: a playground. In fact, it is a playground that children of the community at large also use after school hours and on weekends. However, the government essentially states that it can exclude the church from eligibility entirely because of the Establishment Clause concerns implicated by government funding of religious organizations, even if the conduct at issue by the church is not overtly religious in nature.

This case essentially presents a battle between 1) a state’s freedom to protect its citizens against Establishment Clause concerns and 2) religious organizations’ rights under the U.S. Constitution.  One one hand, the religious liberty side says that religious groups are not seeking special treatment and instead simply do not want to become “second-class citizens” under the law. On the other hand, Missouri argues that every state needs room to protect its citizens from  religious encroachment, in order to preserve the separation between church and state. Both sides have interesting points, and the case essentially presents two favorite conservative causes, state’s rights and religious liberty, and puts them at odds with one another.

Thus, not surprisingly, the case makes for strange bedfellows. The ACLU and certain religious groups are both supporting the government, while many other religious groups of varying faiths are supporting a Lutheran church receiving government funding, which in other contexts might produce outrage by other religious groups. Moreover, one religious liberty scholar supporting Trinity Church even cited Romer v. Evans, a landmark gay rights case, as one of the grounds on which the church could win.

That scholar is Mark Rienzi, professor at Catholic University and Senior Counsel at the Beckett Fund for Religious Liberty. Rienzi and the Beckett Fund are frequently involved in religious liberty cases at the Supreme Court, they wrote an amicus brief for Trinity Church in this case, and Mark graciously agreed to speak with me about this case.

Rienzi essentially asserts that this is a classic discrimination claim – the church is being denied a benefit solely because of its status as a religious organization, and the state admits it. That, to Rienzi, is a lot like other discrimination cases, such as Romer, where the Supreme Court struck down on Equal Protection grounds Colorado’s constitutional amendment preventing the state from recognizing homosexuality as a protected class. As Rienzi stated in our conversation:

“The high level principle is the government can’t exclude you from equal participation based on your status. The core of Romer was that principle. The government can’t exclude you from equal participation based on your status and yet that’s precisely what the state of Missouri is admitting it’s doing to religious groups [in Trinity]. And that that just seems obviously impermissible.”

To be sure, Rienzi also believes that Romer is just one of the ways in which the church can win, and that it also has a strong Free Exercise claim. But, the comparison between religious liberty and gay rights certainly caught my eye.

Ultimately, the most persuasive argument I heard from Rienzi was his comparison to FEMA’s response after Hurricane Sandy. When entire town blocks were destroyed, FEMA did not exclude synagogues and churches from its rebuilding efforts, but rather it helped rebuild these religious organizations just like any other entities that were damaged. As Rienzi stated to me:

“Hurricane Sandy in some towns wiped out the whole block. It wipes out the candy store and the library and the synagogue and something else. And FEMA is going in with grant money to help everybody pump the water out and repair their places. One view of the world says, ‘Oh, you can help the candy store. And you can help the library, it’s a public thing. And you can help the movie theater. But skip the synagogue and go to the next one.’

FEMA, to their credit, came around to the correct answer, which is ‘No, we’re not helping the synagogue in any special treatment for religion kind of way. We’re helping the synagogue because it’s one of the things on the block that got wiped out. We’re helping everything on the block that got wiped out.’ That sort of equal treatment for religion – not treating religion as something that needs to be segregated or mistreated, but instead as something that can participate on equal terms with everything else – that’s what the constitution requires and that’s what Missouri’s getting wrong here.”

That analogy underscores the fundamental point being made: just because an organization is religious does not mean that providing it with government funding will inherently erode the wall between church and state. We aren’t dealing with government funding of new prayer books, we are dealing with tire scraps for a preschool playground. As I said above, sometimes a playground is just a playground.

The case is essentially the polar opposite of a prior free exercise case, Employment Division v. Smith, 494 U.S. 872 (1990). There, when an Oregon man was denied unemployment compensation due to his religious use of peyote, the Supreme Court held that neutral laws of general applicability do not violate the Free Exercise clause, even when they incidentally restrict religious conduct. Thus, the peyote ban was constitutional.

The Trinity case is basically the exact opposite – here, the religious organization is engaging in neutral conduct (getting tire scraps for a playground), yet the government is treating it differently solely on the basis of religion. It remains to be seen whether the Court will in turn apply strict  scrutiny or will instead – like in Smith – opt to apply a much lower standard.

Moreover, the case is complicated by a last minute decision by the State of Missouri – under a new administration – to reverse course and grant STGP eligibility for religious organizations. This decision, issued on Friday, only five days before oral argument, does not appear to moot the issues, but it does potentially undercut the government’s argument that the exclusion of religious organizations is necessary to preserve the wall between church and state in Missouri.

How this case falls is obviously anyone’s guess, but it will likely turn on how well Trinity Church can craft a workable rule in its favor. If Trinity were to win, where would the line be drawn? Could governments bar funding for overtly religious conduct but not purely secular conduct? Could governments ban funding for chapel benches but not playground benches? Could it ban funding for matzah but not wonder bread? I think that Trinity has a very compelling argument in the playground context, but crafting a general rule is clearly the thorniest aspect of their position. To that end, Missouri certainly has the easier argument: a bright-line rule banning government funding of religious organizations is simple, it is workable, and it avoids having lower courts sorting out its Malbec from its Manischewitz.

Ultimately, only god knows how this one will end.

Thank you again to Mark Rienzi for speaking with me about this case. I really appreciate it.