Can the Court De-Politicize Masterpiece Cakeshop and Janus?

The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention.  The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures.  However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven.  With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.

Defusing Masterpiece Cakeshop

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Petitioner Jack Phillips argues that the First Amendment supersedes a Colorado law requiring his bakery to make a custom-made wedding cake for a gay couple.   Because of the assignments for the December sitting, the opinion will likely be written by Justice Kennedy (although Chief Justice Roberts may take this opinion, leaving Justice Kennedy Carpenter, another criminal procedure opinion for Justice Kennedy this term).  Justice Kennedy, the likely author of the opinion, may have inadvertently inflamed the culture-wars aspects of this case.  During oral argument, Justice Kennedy remarked, “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Justice Kennedy has framed the case as deciding who deserves tolerance – the LGBT community in its desire to buy goods on equal terms as straight people, or religious people in their desire to participate in commercial artistic ventures without abandoning their faith.  This framing, however, is orthogonal to the best legal arguments in the case.  Following the doctrine, this case is about the limits of the protection against compelled speech, as applied to a product that is either pure speech or expressive conduct, in a business setting.  Unless Justice Kennedy renders a narrow opinion about religious animus by the Colorado Civil Rights Commission, the free exercise challenges are actually much weaker than the free speech challenges.  Although we should not lose sight of the fact that this case is certainly and understandably consequential to many, both practically and symbolically, the framing of this case as involving gay rights versus religious liberties is both too pointed and too broad.  The fact that Phillips is religious may not be dispositive, and the particular minority group discriminated against may not be dispositive, to the First Amendment arguments at issue.

My hope (although not my prediction) is that Chief Justice Roberts takes Masterpiece Cakeshop and disposes of it on analytically sound grounds that sidestep the case’s enticing political fault lines.  One way to do so would be to hold that blank wedding cakes without writing are not expressive conduct, because these blank cakes do not convey the seller’s message to a reasonable observer.  However, if the Court wanted to go this route, it should have simply waited for a cake that conveyed a clearer message.  Another, I believe correct, way of deciding the case that is less politically inflammatory is to say that Phillips’s wedding cakes are expressive conduct, but that this Colorado law, as applied in this case, survives intermediate scrutiny.  This sort of moderate decision would leave room for cases where a state’s public accommodations law could be struck down as chilling too much speech.  A third option, argued in an amicus brief, would be to hold that cakes are not sufficiently expressive to justify First Amendment protection, but that other, more artistic products cannot be compelled by public accommodations laws.

Avoiding Janus

I have previously written on my own blog that, whatever the right outcome in Janus v. AFSCME, the union dues case, that deference should not be given to the poorly reasoned Abood.  In Abood, the Supreme Court held that the First Amendment is violated when unions require dues to fund political activity, but not to fund their collective bargaining.  Abood has been criticized as both providing too much and too little First Amendment protection to the mandatory collection of union dues and does not have much to commend it.

I now wonder if the Roberts Court should use Janus to manifest the endurance and stability of Supreme Court precedent.  In a time where the right is calling for overruling Roe v. Wade and the left is calling for overturning Citizens United, perhaps the best course is to stay the course.

This is not to say that the Court should never reconsider its precedent, but in a case with substantial reliance interests on the holding in Abood, overturning precedent that is not manifestly erroneous or unjust, which reaches a middle-ground solution, is perhaps not proper.  I am increasingly concerned about the Justices’ and the public’s willingness to treat Supreme Court precedent so flippantly.  I look forward to all comments and to participating in this excellent symposium.

(Cross posted at PrawfsBlawg.)