Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling. However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue. The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.
The majority opinion in Masterpiece Cakeshop holds that Jack Phillips did not receive a neutral and fair adjudication of his First Amendment challenge to Colorado’s application of its public accommodations law. The Colorado Commission found illegal under its public accommodations law Phillips’s refusal to make a custom-made wedding cake for a same-sex wedding. In addition to some possibly hostile comments made by the Commissioners about how religious rationales are used to justify discrimination, Justice Kennedy’s 7-2 majority opinion notes that “[t]he Commission’s disparate consideration of Phillips’s case compared to the cases of the other bakers suggests” that the Commission’s ruling was inconsistent with the free exercise clause. Colorado’s public accommodations law prohibits both religious discrimination in the sale of goods and services and discrimination on the basis of sexual orientation. Justice Kennedy’s comment about “disparate consideration” refers to the fact that the Colorado Commission has explicitly not required bakers to create cakes for religious customers seeking cakes that disparaged same-sex relationships.
Thus, the broad reading of Masterpiece Cakeshop is that a civil rights agency cannot allow bakers to refuse to sell cakes to religious customers with religious messages they find “offensive” if it punishes Jack Phillips and Masterpiece Cakeshop for refusing to sell wedding cakes to same-sex couples. This position is articulated by Justices Gorsuch and Alito in concurrence – that if some bakers are permitted to refuse to sell cakes offensive to their sensibilities, even if that affects customers protected by Colorado’s civil rights law, then all bakers must be permitted to do so. Inconsistent treatment of Phillips is evidence of religious animus.
The narrower reading of Masterpiece Cakeshop, a position taken by Justices Kagan and Breyer in concurrence, reads Justice Kennedy’s comment about disparate consideration to be about the Commission’s reasoning, not the ultimate result. Justice Kagan’s concurrence posits that the Commission should not have allowed its views about which messages on a cake are “offensive” (those denigrating or celebrating same-sex marriage) to infect its application of its public accommodations statute. State actors cannot determine whether expressive content is protected based on its own considerations of offensiveness without violating the First Amendment and without, as here, impermissibly evaluating Phillips’s sincerely held beliefs. However, according to Justices Kagan and Breyer, there is a principled way of distinguishing Phillips’s case from the other bakers – Phillips refused to sell a blank cake, solely on the basis of the identity of the customers. According to Justice Kagan’s concurrence, the other bakers would not have sold cakes disparaging same-sex unions to any customers.
Although, as Howard notes, Justice Kennedy’s opinion is fairly incoherent, he successfully achieves a sizeable majority despite profound differences among the Justices. He also makes clear that clergy cannot be required to perform same-sex weddings, but that businesses must generally respect public accommodations laws. Justice Kennedy articulates – without much elaboration – significant principles to guide future cases. The concurrences, however, are better reasoned, more coherent, and more straightforward about grappling with the issues. Justices Gorsuch and Alito, and Justice Thomas, who also wrote separately, appear to believe that even a blank wedding cake is expressive and entitled to First Amendment protection. Justices Kagan and Breyer do not appear to share this view. Justice Kennedy has not tipped his hand either way, even with his “disparate consideration” comment. We must await further adjudication to resolve the scope of a state’s power to enact particular anti-discrimination laws that may compel expression.
One other note: Although I believe this case could have been decided using an O’Brien expressive conduct rationale, Justice Kennedy’s balancing style is not well suited to First Amendment jurisprudence. Justice Kennedy worries (justifiably) about the stigma to the LGBT community if sellers can refuse service for same-sex weddings. Stigma, however, is an impermissible consideration in First Amendment jurisprudence, just as offensiveness is. The real question is not how to balance the rights of different groups, but where the state’s power ends and our First Amendment rights begin. I currently find the concurrence of Justices Kagan and Breyer more convincing – but I would be interested to see how they might decide a case with actual writing on a cake.
(Cross posted at PrawfsBlawg.)