The Supreme Court’s decision in Masterpiece Cake was barely out before the battle over its significance began. Was it a bold affirmation of religious liberty or a narrow rebuke of the Colorado Civil Rights Commission? Are professionals such as Christian bakers and wedding photographers free to follow their conscience, or do those who seek to compel them to participate in same-sex marriages simply need to issue commands without scorn for their religious views?
The truth is somewhere in between. The ruling firmly rejects the idea the Constitution ought to provide less protection for speech or religious beliefs that are deemed “offensive” or “hateful.” But it is perfectly consistent with the weak protections for religious liberty ushered in by the Rehnquist Court. The case forestalls further erosion of religious freedom and free speech. It does provide robust new protections. Those who want stronger judicial guarantees of religious freedom may need to turn to state courts.
Let’s start with the good news. There is a growing view on the left that the demands of “inclusivity” and “diversity” operate as an important qualification of First Amendment values. Certain views – promiscuously called “hate speech” – are said to marginalize “historically disfavored” groups and must be silenced in order to “include” the views of these now “protected” groups. New York University’s Ulrich Baer, for example, has argued that society, presumably through the state, must balance “the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of the community.”
This view has not yet made much headway in the courts and Justice Anthony Kennedy emphatically rejected it. Citing West Virginia Board of Education v. Barnette, the Supreme Court reaffirmed that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” If the Masterpiece ruling did no more than make clear that noxious ideas of “speech equality” and the need to police “hate speech” are inconsistent with the First Amendment, it is an important accomplishment. Stopping bad law in its tracks is part of making good law.
But what this will mean for the religious liberty of those who claim that their faith precludes them from participating in some obligation imposed by “progressive” government is less clear. Kennedy’s decision continues the relatively shallow protection of free exercise charted by the Supreme Court in Employment Division v Smith. In that case, the Court made clear that neutral laws of general applicability pass constitutional muster, even if they substantially burden religious practice. Masterpiece baker Jack Phillips’ claim that the free exercise clause — not the right to free speech — protected his right to refuse to design a cake for a gay wedding always faced an uphill battle.
But Kennedy seized on an exception recognized in Smith. If it can be shown that it was motivated by hostility toward religious belief, it might nevertheless be unconstitutional. The majority in Masterpiece Cake found that, in rejecting Phillips’ claim, the Colorado Civil Rights Commission had demonstrated such hostility. So his free exercise claim was a winner. But the clear implication, buttressed by certain language in Kennedy’s opinion, is that without the express hostility, it would have been a loser.
Some conservatives argue that walking back the hostility may prove to be difficult in practice since, among other things, it may require states to interpret the statutory protection against discrimination on the basis of sexual orientation in the same way that it interprets prohibitions on religious discrimination. If, for example, bakers must provide a cake celebrating a gay wedding to avoid unlawfully discriminating on the basis of sexual orientation, then they must also provide cakes expressing religiously based opposition to same-sex unions in order to avoid religious discrimination. Given this duty of evenhandedness, many states may decide to call the whole thing off and provide broad protection for conscience.
Other conservatives, recognizing the limits inherent in the Masterpiece ruling, have faulted Kennedy for failing to reach Phillips’ free speech claim. On this view, the constitutional error was not that the baker’s free exercise rights were infringed, but that he was compelled to express support for same-sex marriage.
But not all religious liberty claims will have secular counterparts (such as the baker who does not wish to quote from Leviticus). Not all claims can readily be seen as speech. Religious people believe that their faith must govern their conduct – not just what they believe and say. A pharmacist who does not wish to provide abortifacients or a faith-based adoption agency that wants to serve only married opposite sex couples may have a difficult time claiming that their conduct is expressive or point to comparable refusals that discriminate on the basis of religion.
And that brings us back to Smith. The religious liberty shortcoming in Masterpiece Cake are embedded in its notion that there is no constitutional obligation to accommodate religious dissenters. If we want more robust protection for religious freedom, Smith must be modified.
That won’t be easy. Supporters of Smith conjure a parade of horribles that would ensue if the Constitution required protection of religiously motivated conduct. Draft evaders, tax resisters, drug users and polygamists would all claim a free exercise right to be excused from otherwise applicable legal requirements.
But this parade may never begin. The state Supreme Court in my home state of Wisconsin has never followed Smith, requiring that the state demonstrate that laws burdening religious practices are necessary to serve a compelling interest. Yet our courts have not been swamped with claims for religious exemption. Nor has the passage of the Religious Freedom Restoration Act on the federal level or the enactment of “little RFRAs” in the states led to a wild west of religious excuses. In any event, recognizing a constitutional obligation to accommodate religious practices would not require that all such claims be honored. It would require the state to say why religious dissenters must be made to comply. “Just because” would not be an acceptable answer.
How we might move beyond Smith is unclear. Masterpiece Cake suggests the Supreme Court is unlikely to depart from Smith anytime soon. However, state supreme courts, like that in Wisconsin, are free to interpret their state constitutions in a way that provides more robust protection. Under the Constitution’s supremacy clause, such a departure would not protect against federal restrictions on religious practices, but it would be an important step forward for religious liberty.
As Judge Jeffrey Sutton explains in his important new book, “51 Imperfect Solutions: States and the Making of American Constitutional Law,” state courts can also serve as the “laboratories of democracy.” It is ironic that a progressive culture obsessed with diversity insists upon a uniformity of conscience. It may be that the protection of religious diversity – the recognition that not everyone must believe the same thing – may need to begin in the states.
Rick Esenberg is the president and general counsel of the Wisconsin Institute for Law and Liberty.