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Constitution Minute
June 10, 2018
"Right on the point. Great perspective!" - Oklahoma
Use Masterpiece Cakeshop to Full Advantage
It’s been less than a week since the Supreme Court rendered the Masterpiece Cakeshop decision, but it already seems like eons.
Most of the commentary on the case has focused on how narrow the decision is. The Supreme Court put off the big questions about vendor involvement in same-sex weddings – for example, whether forcing unwilling vendors to provide services to same-sex weddings is compelled speech in violation of the First Amendment. Instead, to everyone’s surprise, the Court picked up on one aspect of the case before it and limited its ruling in favor of baker Jack Phillips to instances where the vendor can show that the government deliberately targeted religion in applying its nondiscrimination law. The Court left for another day the question whether the same result should obtain in the ordinary case where the government does not show open hostility to religion.
What’s generally been overlooked is what the case does do for people of faith and how they can use the Masterpiece decision to their full advantage. Religious people have been given an argument they didn’t have stated so clearly a week ago – that the government’s action is a thinly veiled attack on religion in a country founded on freedom of religion.
Before turning to how to use this argument, let’s look at the constitutional basis for the Court’s decision in Masterpiece in more detail. Writing for the majority, Justice Anthony Kennedy concluded that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” The Court held that, in so doing, the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment. That clause prohibits Congress from preventing the free exercise of religion. It has been applied to the states through the Due Process Clause of the 14th Amendment through what is called the incorporation doctrine.
Civil rights laws must be applied in a manner that is neutral towards religion, the majority opinion said, but the record here showed that the Commission was neither tolerant nor respectful of Phillips’ religious beliefs. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”. They compared his ordinary religious views to defending slavery or the Holocaust.
Now, how can religious people use the Masterpiece decision against the radical gay Left and groups like the Freedom from Religion Foundation who are crusading against religion?
If I were the attorney representing religious clients, I would assess whether the case fits squarely into the Masterpiece Cakeshop envelope – that is, whether the facts show that the law under which the opponents are proceeding is a frontal assault on religion or that the people administering the law are hostile to religion. I would force them to spend time exploring the facts in the case and defending against the proposition they are anti-religious. I would pin down the government officials in deposition and at trial regarding their attitudes toward religion. Put their hostility to religion, if it exists, on the record.
If the case doesn’t fit squarely within Masterpiece, I would argue for as broad a reading of Masterpiece as I possibly could. Suppose you find some facts that indicate hostility to religion on the part of government officials, but those facts aren’t as brazen as in Masterpiece. Then you can argue in good faith for an extension of Masterpiece, even if your facts don’t rise to the level of what happened to Jack Phillips.
Even if your facts fall short, at the very least you will have discredited your opponents, which Cicero – the all-time master of argumentation – advises you always do at the outset of every argument. Discrediting your opponents may tip the balance in your case in your favor in some intangible way.
Finally, this is the first time I can recall that that radical gay Leftists have been told there are limits, and they aren’t always going to get what they want. I’m talking about the ones who want homosexuality taught in kindergarten and who have not been interested in any compromise whatsoever up to this point. Law is the adjustment of competing interests. Other people have interests, too, and, sometimes, those interests are going to win out. As I used to tell my clients: Litigation? Anything can happen. I lost cases I should have won and won cases I should have lost. That’s what happens when you let a court decide your dispute. You lose control. So another use of Masterpiece is to instill doubt in your opponents, and get them to reach some accommodation with you – to settle the case, in other words.
I’ll close with this: The Court in Masterpiece has handed people of faith an argument to make. It’s up to them to fight for as much space under that argument as they can, so that it is applied as broadly as possible. Who knows – some attorney somewhere, representing religious clients, might even come up with a masterpiece of argumentation that helps stem the anti-religious tide sweeping over the nation.
It’s been less than a week since the Supreme Court rendered the Masterpiece Cakeshop decision, but it already seems like eons.
Most of the commentary on the case has focused on how narrow the decision is. The Supreme Court put off the big questions about vendor involvement in same-sex weddings – for example, whether forcing unwilling vendors to provide services to same-sex weddings is compelled speech in violation of the First Amendment. Instead, to everyone’s surprise, the Court picked up on one aspect of the case before it and limited its ruling in favor of baker Jack Phillips to instances where the vendor can show that the government deliberately targeted religion in applying its nondiscrimination law. The Court left for another day the question whether the same result should obtain in the ordinary case where the government does not show open hostility to religion.
What’s generally been overlooked is what the case does do for people of faith and how they can use the Masterpiece decision to their full advantage. Religious people have been given an argument they didn’t have stated so clearly a week ago – that the government’s action is a thinly veiled attack on religion in a country founded on freedom of religion.
Before turning to how to use this argument, let’s look at the constitutional basis for the Court’s decision in Masterpiece in more detail. Writing for the majority, Justice Anthony Kennedy concluded that “the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” The Court held that, in so doing, the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment. That clause prohibits Congress from preventing the free exercise of religion. It has been applied to the states through the Due Process Clause of the 14th Amendment through what is called the incorporation doctrine.
Civil rights laws must be applied in a manner that is neutral towards religion, the majority opinion said, but the record here showed that the Commission was neither tolerant nor respectful of Phillips’ religious beliefs. Some of the commissioners stated their view that there is no room for religion in the public sphere and, further that Phillips’ faith was “despicable”. They compared his ordinary religious views to defending slavery or the Holocaust.
Now, how can religious people use the Masterpiece decision against the radical gay Left and groups like the Freedom from Religion Foundation who are crusading against religion?
If I were the attorney representing religious clients, I would assess whether the case fits squarely into the Masterpiece Cakeshop envelope – that is, whether the facts show that the law under which the opponents are proceeding is a frontal assault on religion or that the people administering the law are hostile to religion. I would force them to spend time exploring the facts in the case and defending against the proposition they are anti-religious. I would pin down the government officials in deposition and at trial regarding their attitudes toward religion. Put their hostility to religion, if it exists, on the record.
If the case doesn’t fit squarely within Masterpiece, I would argue for as broad a reading of Masterpiece as I possibly could. Suppose you find some facts that indicate hostility to religion on the part of government officials, but those facts aren’t as brazen as in Masterpiece. Then you can argue in good faith for an extension of Masterpiece, even if your facts don’t rise to the level of what happened to Jack Phillips.
Even if your facts fall short, at the very least you will have discredited your opponents, which Cicero – the all-time master of argumentation – advises you always do at the outset of every argument. Discrediting your opponents may tip the balance in your case in your favor in some intangible way.
Finally, this is the first time I can recall that that radical gay Leftists have been told there are limits, and they aren’t always going to get what they want. I’m talking about the ones who want homosexuality taught in kindergarten and who have not been interested in any compromise whatsoever up to this point. Law is the adjustment of competing interests. Other people have interests, too, and, sometimes, those interests are going to win out. As I used to tell my clients: Litigation? Anything can happen. I lost cases I should have won and won cases I should have lost. That’s what happens when you let a court decide your dispute. You lose control. So another use of Masterpiece is to instill doubt in your opponents, and get them to reach some accommodation with you – to settle the case, in other words.
I’ll close with this: The Court in Masterpiece has handed people of faith an argument to make. It’s up to them to fight for as much space under that argument as they can, so that it is applied as broadly as possible. Who knows – some attorney somewhere, representing religious clients, might even come up with a masterpiece of argumentation that helps stem the anti-religious tide sweeping over the nation.