MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM.

• Author: Movsesian, Mark L.

INTRODUCTION

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. (1) Like most such disputes, the case involved a small business that declined, because of the owner's religious convictions, to provide a service for a same-sex wedding--in this case, Colorado cake designer Jack Phillips's convictions against designing and baking a cake for a gay couple, Charlie Craig and Dave Mullins. (2) In most of these cases, courts have been unwilling to exempt businesses from the anti-discrimination laws on religious grounds and have ruled in favor of the customers. One might have thought Jack Phillips would lose in Masterpiece Cakeshop as well. Indeed, many observers were surprised that the Court had granted cert in his case at all. (3)

Somewhat surprisingly, though, the Supreme Court ruled in his favor, on the basis of an argument few observers had credited before the Court heard the case. (4) In a 7-2 opinion by Justice Kennedy, the Court held that, in deciding that Phillips's refusal to create a cake for a same-sex wedding violated the state's anti-discrimination laws, the Colorado Civil Rights Commission had violated Phillips's free exercise rights. (5) The Commission, the Court wrote, had failed to treat Phillips's religious convictions in a neutral and respectful way. (6) At least two of the commissioners had publicly disparaged Phillips's religious convictions and none of the other commissioners present had objected. (7) Moreover, the Commission had acted inconsistently in at least three prior cases involving other bakers who had refused, on grounds of conscience, to create cakes with anti-gay marriage sentiments. The Commission had ruled that those bakers had acted lawfully in refusing service. This inconsistency suggested that the state had not been neutral with respect to the substance of Phillips's convictions. Punishing Phillips for refusing, on grounds of conscience, to create a pro-gay marriage cake, while failing to punish other bakers who declined, on grounds of conscience, to create antigay marriage cakes, suggested that the state simply disfavored the content of Phillips's convictions. (8)

Because the Commission had failed to treat Phillips's religious convictions in a neutral and respectful way, the Court held, its action against him violated the Free Exercise Clause of the U.S. Constitution. (9) The Court stressed that future cases, in which state authorities had not demonstrated overt hostility to a claimant's religious convictions, might well reach a different result--a fact that Justice Kagan stressed in a concurring opinion. (10) Masterpiece Cakeshop thus does relatively little to resolve the conflict between anti-discrimination laws and the right of business owners to decline, out of sincere religious conviction, to provide services in connection with same-sex weddings. (11)

Masterpiece Cakeshop is nonetheless important for what it reveals about deeper cultural and political trends, all related, that will affect the future course of the law. Two cultural trends are important: religious polarization and an expanding concept of equality. Over the past two decades, American religion has become polarized between two groups, the Nones, who reject organized religion as authoritarian and hypocritical, especially with respect to sexuality, and the Traditionally Religious, who continue to adhere to organized religion and to traditional religious teachings, especially with respect to sexuality. (12) Each group views the other's values as threatening and incomprehensible. Neither is going away, and neither seems in a mind to compromise--including in commercial life. (13) This religious polarization has figured very prominently in the public's response to Masterpiece Cakeshop and similar controversies.

Masterpiece Cakeshop also reflects a second cultural trend, one that Alexis de Tocqueville--whose work runs like a red thread through our story--saw long ago: an expanding notion of equality. (14) Increasing numbers of Americans endorse a capacious concept of equality--"equality as sameness"--that treats social distinctions, especially religious distinctions, as arbitrary and unimportant. (15) Asserting the importance of religious boundaries, as Jack Phillips did, seems unreasonable to growing numbers of our fellow citizens. Asserting such boundaries strikes them--as it did Charlie Craig and Dave Mullins, and at least some of the Colorado commissioners--as deeply insulting, an affront to human dignity. That so many of the actors in Masterpiece Cakeshop could not credit Jack Phillips's assertions of good faith explains much of what happened in the case, and much of what is likely to happen in future cases.

Finally, Masterpiece Cakeshop reflects an important political trend: the steady growth of an activist state committed to the idea of equality as sameness. At both the federal and state level, administrative agencies work to promote equality in all areas of life. Their actions increasingly impinge on the Traditionally Religious, who face an expanding set of rules and policies, backed by serious sanctions, which promote new understandings of equality, particularly with respect to sex and gender. The actions of the Colorado Civil Rights Commission offer a very good example. Although state officials will not likely demonstrate the same overt hostility to traditional religious beliefs in future cases, they will likely remain committed to the same expansive view of equality. As a result, conflicts between our anti-discrimination laws, on the one hand, and the religious beliefs of millions of American citizens, on the other, will continue.

As Tocqueville famously observed, American political questions inevitably become judicial ones. (16) Conflicts like the one in Masterpiece Cakeshop will continue to find their way into our courts. How will the courts resolve them? The law with respect to religious accommodations is currently something of a "patchwork." (17) Different jurisdictions employ different tests in different circumstances. Nonetheless, the leading test remains the so-called "compelling interest" test, which holds that the government may impose a substantial burden on a person's religious exercise only if the government has a compelling interest in doing so and has chosen the least restrictive means. (18) Notwithstanding Masterpiece Cakeshop's somewhat unusual resolution, the compelling interest test will probably determine the outcome in most future cases.

But the compelling interest test presents significant difficulties. (19) The test turns controversies about religious accommodation into judgment calls, the outcomes of which depend, practically speaking, on the intuitions of the people doing the judging. (20) In a polarized society like ours, with deeply divergent understandings about the nature and value of religion and the scope of equality, intuitions about "substantial burden" and "compelling interest" vary widely from person to person--and from judge to judge. (21) The test makes it very hard to predict what result will obtain in any particular case and makes judges' identity, background, and prior normative commitments signally important. (22) In short, the cultural and political trends I have identified--growing religious polarization, an expanded concept of equality, and an activist state--suggest that conflicts between anti-discrimination norms and the religious beliefs of millions of Americans will, if anything, grow more frequent and bitter and that courts will continue to have to resolve them. And the vague nature of the compelling interest test suggests that the ultimate legal resolution will remain unclear for a long time to come.

This Article proceeds as follows. Part I describes the Court's decision in Masterpiece Cakeshop. Part II explores the cultural and political trends I have identified and shows how the Masterpiece Cakeshop litigation reflects them. Part III concludes and ventures three predictions: conflicts like Masterpiece Cakeshop will grow more frequent and harder for our society to negotiate; the law in this area will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already are.

One clarification at the start: this Article is analytical rather than normative. For what it is worth, Masterpiece Cakeshop struck me as a difficult case. But my goal here is not to argue the merits. Rather, I seek to illuminate the issues and make some predictions about the future course of the law. Those predictions may turn out to be wrong. But their correctness does not depend on one's views about which side should prevail in the clash of important values that Masterpiece Cakeshop represents: our society's commitments both to nondiscrimination and to religious freedom.

1. THE MASTERPIECE CAKESHOP DECISION

   Masterpiece Cakeshop presents what has become a familiar pattern in American commercial life. A gay couple asks a vendor to provide services in connection with the couple's wedding--photography, flowers, invitations--which the vendor refuses on the basis of his religious convictions. (23) Providing services for a gay wedding, he explains, would make him complicit in conduct he considers sinful. (24) The couple objects that the vendor is denying service in violation of state public-accommodations laws that prohibit discrimination on the basis of sexual orientation. The vendor responds that he is willing to provide services to all customers, including the couple, whether they are gay or straight. But he declines to participate in gay weddings, because gay weddings violate his religious beliefs.

   In Masterpiece Cakeshop, a gay couple, Charlie Craig and Dave Mullins, asked a Colorado cake designer, Jack Phillips--the owner of...