The Supreme Court on Tuesday will consider the case of Jack Phillips, a Christian baker in Colorado who declined to create a wedding cake for a gay couple because of his deeply held religious beliefs. The case implicates the conflicting promises of law — while Phillips is guaranteed free speech and religious exercise, the couple, Charlie Craig and David Mullins, are also guaranteed fair and equitable treatment in places of public accommodation.
A third issue lurks beneath this Gordian knot. This Tuesday, Colorado must prove that it has generally and neutrally applied its anti-discrimination law, called the Colorado Anti-Discrimination Act (CADA). Phillips and his amici argue that the record is replete with evidence of a double standard.
Two cases are of special relevance to approaching the matter of general and neutral applicability: Employment Division v. Smith and Church of the Lukumi Babalu Aye v. City of Hialeah. What Smith teaches is that a comprehensive prohibition connected to a compelling government interest is both neutral and generally applicable. Lukumi holds that a law targeting a particular religion for disparate treatment, even if that law applies with equal force to all people, is neither neutral nor generally applicable.
One could think of Smith and Lukumi as occupying opposite ends of the same spectrum. Phillips’s case could turn in significant part on where the justices place this controversy on the Smith–Lukumi axis. Phillips argues that his case is closer to Lukumi, given the conduct of the Colorado Civil Rights Commission in enforcing CADA. Whereas Phillips was subjected to a range of penalties for refusing to produce a cake for a gay wedding, commissioners reached different conclusions when roles were reversed.
In recent years, the commission permitted three separate bakers to rebuff Christian patrons requesting cakes promoting a traditional view of marriage. One such case, which mirrors Masterpiece in essential particulars, arose in March 2014, when a Christian fundamentalist named William Jack entered Azucar Bakery in Denver, hoping to procure two custom cakes. He asked that each cake take the shape of a Bible and feature scriptural passages condemning homosexuality and promoting the redemptive power of Christ.
The bakery agreed to create Bible-shaped cakes and offered to provide Jack with icing to decorate the cakes as he wished. They declined, however, to furnish each cake with the Bible verses in question.
In turn, Jack filed a complaint with the commission, arguing that the bakery’s denial constituted discrimination against his religious beliefs. The agency dismissed the charge in short order. In affirming this decision, the Colorado Court of Appeals ruled that Azucar was not motivated by anti-Christian animus, given “the offensive nature of the requested message.”
In recent years, the Colorado Civil Rights Commission permitted three separate bakers to rebuff Christian patrons requesting cakes promoting a traditional view of marriage.
The court also affirmed the commission’s finding that a baker could similarly refuse to produce content promoting white supremacy or denigrating Islam. It further noted that evidence of anti-Christian bigotry was scant. Three of Azucar’s employees are practicing Catholics, and the bakery regularly produces baked goods for Christian lifecycle events such as baptisms. The commission and the court of appeals reached the same conclusion in two other cases with similar fact postures.
In his amicus brief for Phillips, Douglas Laycock, a law professor at the University of Virginia, argues that this pattern was offensive to Lukumi. He contends that the Phillips and Azucar cases reveal an enforcement pattern that impermissibly disfavors religious dissenters and thereby fails the requirements of generality and neutrality.
He identifies several telling disparities. First, there is incongruity at the general level: The court found that Azucar can, in conscience, refuse to denounce same-sex marriage through its work product while Phillips cannot, in conscience, refuse to sell products promoting same-sex marriage.
But then there are more-subtle disparities: For example, the court considered Azucar’s previous work for Christian patrons exonerating evidence, while finding Phillips’s willingness to sell other cakes and baked goods to gay couples immaterial. The court also reasoned that the views expressed on Jack’s cakes could reasonably be attributed to Azucar, but it found that Phillips had no speech interest in his custom goods.
It appears, he says, that the state has created two classes of bakers, and chosen to disfavor one on the basis of their viewpoint, even where underlying facts are identical. “Even if the court’s alleged distinctions were more persuasive, and even if they succeeded in placing the two sets of bakers in different doctrinal categories under state law, that would not change the bottom line,” Laycock wrote. “The conscience of bakers who support same-sex marriage, or refuse to oppose same-sex marriage, is protected. The conscience of bakers who object to same-sex marriage is not protected.”
He goes on to argue that when religious conduct and analogous secular conduct are regulated differently, the demands of generality and neutrality are left unsatisfied. When religious practice receives distinct treatment, it implies a negative value judgment about religion, which the Supreme Court has time and again condemned, in Lukumi and its progeny. The lower court’s decision, he says, betrays just such a judgment. “This negative value judgment about religion is obvious in the opinion below — in its strained efforts to distinguish bakers on opposite sides of the issue, in its inconsistent answers to the same questions when posed about one set of bakers and the other, and in its explicit statements,” he wrote.
In rebuttal, Roberta Kaplan and Joshua Matz, two seasoned civil-rights litigators, assert that Phillips’s grievances arise only incidentally, as the government pursues and protects its legitimate interest in anti-discrimination. Any injury to religion in this instance, they say, is a second-order consequence, while Lukumi teaches that such injury is unlawful only where the state has carefully sculpted a law to disfavor religious believers. Therefore, they say, CADA has no trouble satisfying generality and neutrality. They further counsel the justices to adopt a prudent posture by proceeding “with caution, developing jurisprudence over decades and engaging society in a respectful dialogue.”
But Phillips’s attorneys contend that the commission’s conduct hinders such respectful dialogue, comparing the current debate in Colorado to an exchange of differing views on North Korean radio. “By playing favorites on the issue of same-sex marriage, the commission has undermined Phillips’s freedom to engage in an ‘open and searching debate’ on that topic,” they write. “Real dialogue cannot exist if one side is compelled to either promote and celebrate the other side’s position or face the loss of family businesses, vocations, and (in some cases) even personal assets.”
Ironically, that language, “open and searching debate,” derives from Justice Kennedy’s opinion legalizing same-sex marriage.