Justice Kennedy’s Imprint on Masterpiece Cakeshop and Becerra

The Court today in Becerra held invalid California’s laws requiring pro-life “crisis pregnancy centers” to alert customers that (1) the state provides low cost family planning services, including abortion services, in the case of licensed pregnancy-care facilities, or (2) that the facility is unlicensed, in the case of unlicensed facilities. Becerra is a speech case, and Masterpiece Cakeshop, decided earlier this month, was predicated on religious animus grounds (although really should be thought of as a speech case).  However, the two cases seem greatly influenced by Justice Kennedy’s antipathy towards the state’s deciding, in a heavy-handed (perhaps arrogant) way, what is best for its citizens to think.

In Becerra, Justice Kennedy’s concurrence chides California for enacting what the state describes as a “forward thinking” piece of legislation.  Kennedy notes that, “it is not forward thinking to force individuals” to unhappily be the instrument of the state’s favored position.   In Masterpiece Cakeshop, Justice Kennedy’s majority opinion takes the Colorado Civil Rights Commission to task for denouncing religion in its desire to create a more progressive civil rights regime.  Tolerance of the perceived intolerant seems to be Justice Kennedy’s approach, an approach that bodes well for robust First Amendment protections.

But perhaps too well?  Scholars and advocates argue that the First Amendment has become “the new Lochner,” a sword to invalidate economic legislation.  This is especially true in an age of soft paternalism, where speech-implicating disclosure requirements have replaced outright prohibitions.  Masterpiece Cakeshop, in future form, has the potential to undermine decades of civil rights progress applying anti-discrimination provisions to businesses.  Becerra, the dissent fears, has the potential to disturb a wide swath of disclosure requirements — so long as they are deemed controversial and not simply factual.

More than Lochner, I think both cases echo the spirit of West Virginia Board of Education v. Barnette, the case deciding that public school students cannot be forced to salute the flag.  I’ll be participating in a symposium on the 75th anniversary of Barnette in the Fall. I will be writing about how courts should treat what I call “good orthodoxy” cases, where a claimant challenges the constitutionality of a law or policy that was designed to remedy the harms committed against historically marginalized groups.  The key to avoiding Lochner-like concerns will be deciding when the law at issue compels speech, and when it regulates something more akin to conduct.

(Cross posted at PrawfsBlawg.)

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