"Gerrymandering the Wedding-Cake Refugee Ban": or, How "Mutual Exclusion" Could Admit Workable Compromises

There are interesting connections between three cases at the Supreme Court right now: Gill v. Whitford (partisan gerrymandering), Masterpiece Cakeshop v. Colorado Civil Rights Commission (same-sex wedding cake); and Trump v. IRAP & Trump v. Hawaii ("Muslim ban"). Masterpiece and Trump are easily comparable in that both deal with religion vis-à-vis exclusion: the first case being about allowing a baker's religious beliefs to let him exclude same-sex couples from ordering his wedding cakes, and the second case about excluding immigrants/refugees from six largely-Muslim countries. Gill is also about exclusion, i.e., one party excluding the other from power by gerrymandering the minority party into impotence. But do the three cases have significant differences? Masterpiece has some twists and turns and maybe even mutual exclusions, it turns out. And carefully dealing with those exclusions could lead to a workable solution.

In Gill and Trump, it may seem obvious that partisan gerrymandering, and arbitrary and capricious bans on Muslims, are plain wrong. (The present author has filed briefs in both cases favoring the respondents or appellees: linked here is the Gill brief (criticizing partisan gerrymandering), and the Trump brief (finding the Muslim ban wanting in reason).) There is basically nothing good to say about letting legislatures perform partisan gerrymandering without judicial review (do we let the fox guard the henhouse?); and if we are protecting ourselves against Mideastern dangers, why is Saudi Arabia not on the list of banned countries? (And since Trump canceled the decades-long tradition of the White House Ramadan festival, without canceling other festivals like Passover, his own degree of fairness towards Muslims seems more and more shaky...)

In Masterpiece, though, the question of who is an excluded group becomes a little more interesting. Of course, there have been centuries, or millenia, of discrimination against same-sex-affectionate people; but these days, there is sometimes prejudice against religious people, too, especially those of a "traditional" bent. Religious, or even non-religious, people who criticize or shun certain sexual practices or lifestyles are likely to be called "behind the times", or even "bigots", simply for not endorsing, or abetting, every imaginable lifestyle and its putative pleasures.

But while it is unfashionable (and some say, unjust) not to make wedding cakes for gays: what if, say, a Jewish Holocaust survivor was asked to make a wedding cake for Nazis who aren't just secular, but follow Odinist, Nordic white-supremacist religion which is evoked in the wedding? thus maybe triggering legal protections for religious consumers against "discrimination" by businesses? (The present author uses this scenario in his amicus brief in Masterpiece.) Or similarly, what if a devout Christian is asked to make a cake for a Satanist wedding? Now the issue broadens, from "refusing to make a gay wedding cake" to "freedom not to participate in a ceremony, of whatever type, one doesn't want to endorse".

If we grant the freedom to the Holocaust survivor and the Christian not to make wedding cakes for abhorrent folks--assuming that most people find Nazism and Satanism abhorrent--, that may, like it or not, allow freedom to Masterpiece Cakeshop not to make a cake for Charlie Craig and David Mullins. The freedom to do good things, like not making a cake for Hitlerites or devil-worshipers, may entail the freedom to do things that are socially criticized these days, like not making cakes for gay weddings. (Of course, almost everyone agrees that no baker has to put on the cake an actual message or symbol he/she finds offensive, so that sculpting a swastika, or a baphomet (Satanic symbol), or the words "THE LORD JUST LOVES GAY MARRIAGE!!!", could not be forced on a baker.)

However, what about those who argue that in all those three scenarios, the baker should make a cake for consumers, no matter what? After all, an argument may go, food is just food, not an expressive message about marriage (triggering First Amendment protection for the baker), even if it looks and tastes good, as a wedding cake might. But what if the baker seriously feels he is going to go to Hell for eternity, or something similar, for making a cake? Maybe it is too cruel to put him out of business, through fines, sanctions, or even jail, just because he is exerting his conscience. (There are certain no-go zones like race, and maybe other immutable or congenital statuses, say, birth sex, that should never allow a consumer to be discriminated against. Following particular voluntary lifestyles, though, like "religious" Nazism or Satanism, could be seen as legitimate grounds for criticism, and non-participation in those lifestyles by people of conscience. Not that homosexuality is being compared to Nazism or Satanism here; the point is freedom of conscience.)

But many will still argue, "You chose to be in business, you have to make some kind of cake for people." If this is true, is there any "compromise" solution to the Masterpiece problem? Or is there just a zero-sum game, where either: the baker can do whatever he wants, no matter how much it hurts the gay couple; or, on the other side, the gay couple can have the baker fined, shut down, and even jailed for his refusal to serve them?

One possible solution resembles one that this author mentioned in his amicus brief for Zubik v. Burwell, the case about the Little Sisters of the Poor and other religious groups refusing to participate even in paperwork that could trigger contraceptive coverage for their employees. This author noted, see Zubik Amicus Br. supra, passim, that the Sisters could pay their employees the rough cash value of contraceptives rather than actually paying for the contraceptives: then the employees, not the nuns, would be "guilty" if they bought contraceptives. Also, any fine to the Sisters could be small or moderate, instead of the large fines the federal government threatened them with; and the fine might go to pay the government for any inconvenience it suffered in having to locate the contraceptive-seeking employees, since the Sisters did not really want to identify them to the government.

The Sisters even expressed their willingness to pay a small fine, see Lauretta Brown, Little Sister on Religious Freedom Lawsuit: We Have No Choice But to See it Through to End,

As for the Sisters’ lawsuit against the Obamacare mandate, Sister [Constance] Veit described it as “a matter of religious liberty,” . . .

. . . .

“The reason we’ve taken it so far is that the fines being imposed on us would represent $70 million dollars across our homes in the United States, so that’s an impossible amount for us,” she explained. “If it was some small amount maybe we would say okay, we’ll pay the fine and stick to our beliefs. . . .”

Id. That idea, of a small fine (not a huge fine or shutdown or jail), might work in Masterpiece, or similar cake cases.

That is, if the Court decides bakers like those in Masterpiece should have to suffer in some way for excluding same-sex weddings, that suffering could be at most a small or moderate fine, or damages to the gay couple, covering the time, energy, and money that the couple may have spent to go find a new baker, and/or maybe the cost of a cake elsewhere (?), and/or something to compensate for humiliation or hurt feelings. But the baker would be free to make decisions of conscience without huge fines, shutdown, or jail time, or maybe even without mandatory "re-education" of his staff that they must do as the State says.

If it could work for the Little Sisters (freedom of action and conscience, but reimbursing the State and employees for externalities the Sisters force on them), then it might work for bakers as well, refusing to craft wedding cakes for gays, Nazis, Satanists, Scientologists, whomever, but handing over fines or damages to the State and/or the wedding couple to make some compensation for the exclusion.

And the wedding couple is truly being excluded by the baker's refusal, so we should understand that they might feel hurt by that. However, the other type of exclusion, whereby people of conscience are excluded from First Amendment protections just because they are running a business, is also hurtful and should be avoided if reasonably possible. (Incidentally, not just employers, but employees, could be unjustly stripped of conscience rights: e.g., an Orthodox Jewish or Muslim meat inspector who prefers not to touch pork, especially considering that maybe some other meat inspector could inspect the pork, so the religious inspector could inspect some other meat. Should she have to inspect the pork or not?)

People might complain that a baker "buying his way out of" making a wedding cake is pulling a Led Zeppelin, i.e., "buying a stairway to heaven" by purchasing a conscience exemption for himself through paying fines/damages. But if the couple gets damages, and the baker gets to feel he is not going to burn in Hell for eternity, maybe this is a workable solution. Or, if nothing else, it could inspire thinking that might lead to a workable solution.

In a free society, people may agree to disagree. A religious baker might want to exclude various people (fascists, pornographers, etc.) from his wedding services. But those excluded persons, if they somehow fall under a protective classification like religion (which would rarely cover fascism or pornography--but see the case of the Odinist Nazis, supra), could be compensated (money). Inversely, many of the public just want to be served, to consume, and and do not mind excluding conscientious people from legal protection. ("After all, anyone with a strong conscience must be an inflexible bigot!" But people of conscience may rebel against that exclusion, and want to act freely, even if, say, they have to pay some fine, and maybe the Court also mandates that they give advance warning, e.g., written notice, that they will not cater certain types of events.

Masterpiece may seem more trivial than Trump or Gill: Muslim bans, and the issue of terrorism; and also the massive political-power problem of partisan gerrymandering, may seem more important than a gay wedding cake. But domestic life is important too, not just foreign policy or high (or low) politics. If some type of compromise or try-not-to-hurt-either-party solution in Masterpiece comes from the Court, that could create an atmosphere of equity and amity that might reach out to other spheres of life as well. "Charity begins at home", and if both the baker and the same-sex couple can somehow receive fair treatment in Masterpiece, that could be a model of sorts for dealing with other cases of exclusion, either one-sided or mutual, in this country or abroad: and the hurts of exclusion are something for which this author strongly welcomes healing, if reasonably possible.