Author:Laycock, Douglas
Position:Thirty Sixth Annual Federalist Society National Student Symposium on Law and Public Policy

    We were originally asked to address the report on religious liberty from the United States Commission on Civil Rights. (1) That report was rendered obsolete by the 2016 election, except in the sense that about half the country probably agrees with it.

    The Civil Rights Commission is an advisory body. (2) The Commission delivered its report to an administration that would have agreed with some of it. But the Obama Administration certainly would not have agreed with the tone. President obama was much better on religious liberty than conservatives give him credit for. (3)

    The Trump Administration is very different, and it remains unpredictable. Religious liberty is looking better in some ways for conservative Christians. It's looking worse for Muslims, but apart from the various versions of the travel ban, (4) it is so far not as catastrophically worse as I had feared. Religious liberty may be less protected for liberal Christians and all other non-Christians; they are not the religions this Administration cares about. The Attorney General has issued memoranda that promise to enforce all existing protections for religious liberty and appear to make that promise even handedly for all faiths. (5) Perhaps the Administration's enforcement priorities will also be even handed; time will tell.

    The Commission's report addresses only a very narrow slice of issues: the sometime conflict between religious liberty and other civil rights. (6) Just a quick reminder: religious liberty is a civil right. (7) Issues relating to gay rights and contraception have dominated religious liberty debates in recent years; they have taken most of the oxygen out of the room. But most religious liberty issues have nothing to do with sex, gay rights, or contraception.

    Counting from Employment Division v. Smith (8) forward, there have been eleven merits decisions in the Supreme Court on free exercise claims brought either under the Constitution or under federal religious liberty legislation. Only two of them were about contraception. (9) None were about wedding vendors or gay rights, but now there will be one: the Court has granted review in a wedding-vendor case. (10) Nine of the eleven cases decided so far were about a great diversity of things unrelated to sex. (11) And this does not include the six cases on freedom of religious speech, which were about speech on a wide range of topics. (12) A more extensive study of cases in the Tenth Circuit and its district courts found a similar pattern. Apart from the flurry of substantially identical cases about contraception, there weren't many cases and they weren't about sex. (13) There is a risk of throwing out religious liberty for all kinds of religious minorities because of the deep hostility between the two sides about sex. (14)

    The title of the Commission's report is Peaceful Coexistence, but the text shows no interest whatever in peaceful coexistence; it calls for unconditional surrender by those claiming a right to religious liberty. (15) The majority adopted every argument it ever encountered against protecting the actual exercise of religion and in favor of protecting only the right to believe. (16) It adopted arguments that have nothing do with the nondiscrimination laws that are its charge--arguments that would tend to suppress religious liberty universally and not just in the context of other civil rights laws. Examples include the conclusory assertion that protecting religious beliefs but not practices is "fairer and easier to apply," and even the absurd argument that religious liberty deserves little protection because religious beliefs and practices can change over time. (17) Its review of the cases is mechanical, wooden, and in places, inaccurate. (18) When you say that the Establishment Clause has received more consistent judicial developments than other clauses, (19) you forfeit much of the little credibility you may have had.

    The formal recommendations are question-begging if read literally. The Commission says that exemptions are bad when they're overly broad; that we should not unduly burden other civil rights or civil liberties; that we should apply Smith except when there's controlling authority otherwise. (20) How much is overly, unduly, or controlling is not addressed in the findings or recommendations, but the majority's view is clear from the commissioners' separate statements. (21) They are opposed to religious exemptions, but they offer little reasoning in support of that view and make no attempt to grapple with the real issues. They announce at the beginning that the rights they prefer are preeminent, and therefore, they always prevail in case of any conflict. (22)


    Enough about the Commission. What are the real issues on the questions it addressed? The contraception issue has gone away by administrative rulemaking. The Trump Administration has issued new interim final rules that expand the range of employers eligible for the exemption and abandon the existing regulations' measures to provide free contraception to women whose employers are exempted from providing it. (23) Now a variety of plaintiffs claim that this broadened exemption is unconstitutional, (24) but the constitutional claims in that litigation have little prospect of success.

    The wedding-vendor cases (25)--do florists, bakers, wedding planners, and the like have to provide services for same-sex weddings--are not going away. These cases have mostly been a matter of state law, and so at first appeared to be not much affected by the election. The discrimination claim does not arise under federal law; there is no federal gay-rights law. And even if the Supreme Court interprets sex discrimination to cover sexual orientation and gender identity--an issue that is rapidly percolating in the courts of appeals (26)--the federal public-accommodations law does not prohibit sex discrimination, and it applies only to hotels, restaurants, gas stations, and entertainment venues. (27) So there is no federal nondiscrimination law that on any remotely plausible interpretation would reach the wedding-vendor cases. This issue remains to be fought out under state law, in state legislatures, and in Congress.

    The most promising religious liberty defenses in these cases have also been based on state law--on state constitutions and state Religious Freedom Restoration Acts. (28) The only federal issues are a claim that the required conduct is compelled-speech, (29) a claim that the ban on sexual-orientation discrimination is not neutral and generally applicable, (30) and a claim (which usually has not been preserved) that Employment Division v. Smith should be overruled.

    None of these claims is obviously lacking in merit, but each has doctrinal and realist problems. No long-term strategist would choose these polarizing cases either to test the meaning of "generally applicable law" or to seek a reconsideration of Smith. The Court's conservatives might bite on one of these federal issues because they see religious oppression and have no other way to help. There is more than one potential swing vote on these issues, but all the attention will be on Justice Kennedy. Kennedy was part of the majority in Smith, and he has written all the gay-rights opinions. (31)

    Whatever the difficulties, the Court has agreed to decide Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (32) the case of a baker who declined to make a cake for a same-sex wedding. And the baker's case is much stronger than the preceding two paragraphs suggest. A statute that was arguably neutral and generally applicable on its face has been revealed by discriminatory enforcement to be very far from neutral or generally applicable in practice.

    A Christian activist named William Jack, who is not a party to the litigation, smoked out the state of Colorado and forced it to make explicit what is usually left to speculation: the refusal to protect conscientious objectors in these cases is discriminatory and one sided. (33) Colorado protects conscientious objectors who support gay rights or marriage equality, but it does not protect conscientious objectors who oppose marriage equality. Because the law is not applied equally, it is not neutral and generally applicable, and it is therefore subject to strict scrutiny under the Free Exercise Clause. (34)

    What little we know of William Jack is not very attractive, but he served a purpose. Jack asked a baker to create a cake inscribed with the quotation, "Homosexuality is a detestable sin. Leviticus 18:22." The baker refused, and Jack filed a complaint alleging religious discrimination. Of course not all opposition to marriage equality is religious. And many religious believers who conscientiously object to assisting with same-sex weddings would not invoke this verse from Leviticus. (35)

    But a customer who wants Leviticus on his cake is requesting a religious message. The same public accommodations law that prohibits discrimination on the basis of sexual orientation also prohibits discrimination on the basis of religion. (36) And the implementing regulations specify that this prohibition includes discrimination on the basis of religious practice or on the basis of "the beliefs or teachings of a particular religion, church, denomination, or sect." (37) It does not matter that Jack's religious belief and practice is extreme and offensive. The question is not whether the baker discriminated against Christians in some generic sense, but whether he discriminated against Jack on the basis of his particular religious belief. No one but a very conservative Christian or Jew would request this cake.

    Jack Phillips, the owner and cake artist of Masterpiece Cakeshop, who refused to make a cake celebrating a same-sex wedding, is squarely on the opposite side of the same divisive issue from the...

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