If "Employment Division v. Smith" Isn't Loosened, Jack Phillips Might Be Bound for Failure

Whether you think same-sex-wedding-cake refusenik Jack Phillips is 1. a modern-day Martin Luther nailing a 95-layer cake to the door of the Colorado Civil Rights Commission, or 2.some Plains State Bible-thumper who "Hates the Rainbow", or 3. a little of both, or 4. neither: in any case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commissionis a fascinating case. But at this point, the present author notes that the respondents' filings are pretty damning, and reinforce the notion that petitioners Phillips and his cake shop have some heavy lifting to do. (One helpfully notes that Phillips shares his name with a telegraphist on the Titanic.) In particular, there might be little chance for them to win except by convincing the Supreme Court to relax the death grip of Employment Division v. Smith (494 U.S. 872 (1990)) on the Free Exercise Clause of our Constitution's First Amendment.

(The author has written previously, noting possible "compromises" in the case, in an amicus brief in the case, and another Casetext post, and by-the-bye in a pending amicus brief in Evans v. Georgia Regional Hospital, noting that LGBT employment may be a simpler issue than LGBT marriage. But the present article, as an "update", notes that a compromise may now be the best that Petitioners can do, given the relevant legal mechanics following Respondents' vigorous submissions.)

I. Cakes May Not Be Speech, and Where's Colorado's RFRA? or, Where's Petitioners' Case, Anyway?

To start with: as the present author noted in his own brief for neither party in Masterpiece,

Amicus suspects that it risks straining belief to claim that the cake itself, and its taste, comprise expressive behavior. If that were true, then some bigot who refused to serve certain minorities at his restaurant could claim that he is willing to serve some food, e.g., slop, to them, but that to make food that is delicious, tastes very good, is “ artistic expression” . . . .

. . . . [M]aybe food is not really expression. Even food that looks good, wedding-cake style.

. . . .

At this point, one wonders if Petitioners should do themselves a favor and drop the “artistic expression” claim .. . .

Id. at 12, 14. And a brief by Eugene Volokh and friends for Respondents makes similar observations, see id. When Eugene Volokh is against you on a First Amendment claim, it might be time to run for the hills.

As for Phillips' "Free Exercise" claim, he relies on, inter alia, Burwell v. Hobby Lobby Stores, Inc.(134 S. Ct. 2751 (2014)). Bizarrely enough, though, Petitioners' merits brief , while mentioning Hobby Lobby, supra, forgets to mention that Hobby Lobby relied on theReligious Freedom Restoration Act of 1993 ("RFRA") to protect a company's freedom not to participate in contraceptive distribution to employees. And on that note, the brief also forgets to mention the signal fact that Colorado does not have a state RFRA. In fact, the brief doesn't even mention RFRA at all! Quite an omission for a brief claiming to champion religious freedom.

So, inquiring minds might ask, what case do Petitioners actually have, if any? No RFRA, and maybe little chance the Court will think a wedding cake is really "speech"; so, what's left?

II. Supplicating the Supremes to Slip a Mickey to Smith...An Easy Task?

So is Phillips' case damned from the get-go? Maybe; but for fun, let us consider what stratagems Phillips' lawyers, "ADF" (who have a long history of losses in LGBT cases, whether Lawrence v. Texas, or United States v. Windsor, or Obergefell v. Hodges) could possibly use. Their merits brief does mention Smith, supra, but with a weak claim that Petitioners' case has somehow not been treated fairly vis-à-vis the "neutral law of general applicability" (a catchphrase in Smith) which is the Colorado statute. But what if Petitioners actually were treated fairly in the courts or commissions below? There goes Petitioners' argument.

All that might be left, then, is for Petitioners to ask that Smith be loosened in certain cases, in order to let the Free Exercise Clause work its magic even if there isn't a RFRA in sight. Since Colorado has no RFRA, Petitioners might have to settle for an inferior level of protection, if there is any available at all.

Is the Court likely to do that, though? Focusing on Justice Anthony Kennedy for now: Kennedy is the only Justice still on the Court who was in the majority opinion in Smith. Is he likely to want to weaken Smith? Moreover, he wrote the opinion in City of Boerne v. Flores (521 U.S. 507 (1997)), which, see id., prevented RFRA from applying to the States (though they could roll their own RFRA if desired). So, he may have some skepticism about free-floating exemptions to Smith.

But Phillips' lawyers can always try. Justice Sandra Day O'Connor wrote a concurrence in Smith, joined by, mirabile dictu, liberal stalwarts Justices William Brennan, Thurgood Marshall, and Harry Blackmun, when in our present age we often associate religious-freedom arguments with conservatives. O'Connor and confreres felt that the First Amendment should give some protection even with neutral laws of general applicability. So Phillips may have to beat the drum hard to convince the Court that O'Connor's concurrence, or similar logic, applies to some extent in the instant case.

III. Some Points for Phillips: Smallness; Comparisons with Jewish Religious Practice; the Trump Contraceptive Deregulation; and Favorable Comparison with a Racist Airbnb Host...But, Externalities May Have to Be Compensated

What points might Phillips use to convince the Court to tweak Smith (besides the obvious point that Phillips is a "little guy", as opposed to being Walmart, so how much damage can he do?)? For one, showing that the current case (refusing cake to gay weddings...and maybe even cupcakes too, it seems, per, e.g., the merits brief of Charlie Craig and David Mullins, at 1), is only one subset of possible refusals of businesses to serve expressive events. (And a wedding, or attached celebration, is a highly expressive event; if it weren't, why would one get a special cake to celebrate it?)

For one sample of other forms of service refusal for expressive events, the Agudath Israel brief supporting Petitioners is instructive:

It is . . . .quite likely that an Orthodox Jewish baker would refuse to design and bake a cake for an event celebrating a marriage of two men, and it is likely that an Orthodox Jewish caterer would refuse to prepare food for it, and that Orthodox Jewish photographers, musicians, printers, florists, etc. would refuse to provide their services.

These are not the only circumstances in which the decision of the court below would bar Orthodox Jews from living and conducting their businesses in accordance with our core religious beliefs. For example, because of Jewish law’s prohibition of intermarriage, many Orthodox Jewish caterers, and other Orthodox Jewish service providers, would not service a wedding of a Jew and a non-Jew.

Id. at 3. Present readers may be horrified at the idea of businesses not serving a Jew-Gentile marriage, but if it is seen as a religious issue, not a racial one (race discrimination being an absolute no-go, really), then it may be less unpalatable.

And if you allow Orthodox (or other) Jews not to serve a Jew-Gentile marriage, then, sadly enough, you must probably also legally allow a Nazi baker (are there any?) not to serve a Jew-Gentile marriage, if done for supposedly religious/ethical (not racial) reasons. And catty-corner from that: you must allow a Jewish Holocaust victim baker not to serve a Nazi white-supremacist-religious (e.g., "Odinist") wedding; and you must allow a Christian not to serve a Satanist wedding; and you must allow a gay baker not to serve a Christian wedding if the baker somehow feels all Christianity is homophobic; etc.

What is the alternative? Do you send the Holocaust survivor to jail for not serving the Odinist? (That sounds sort of anti-Semitic.) Or do you "just" shut down his/her business, or impose a gigantic fine or damages? Those things sound like something that North Korea, or even Nazi Germany itself, might impose, not a democracy with religious freedom. And if you don't punish the Holocaust survivor hugely, then, legally, how can you punish anyone else hugely?

All that said, a sample Question Presented, in addition to (or instead of) that presented by Phillips, might be like

"Should Employment Division v. Smith, 494 U.S. 872 (1990), be interpreted to allow the Free Exercise Clause to abate punishment, partially or wholly, for businesses refusing, for religious or ethical reasons, to serve inherently expressive events such as weddings?"

That sample Question says "religious or ethical", not just "religious", partially because of the Trump Administration's recent decision to suspend the Affordable Care Act's contraceptive mandate not only if there is a religious objection by a business, but even if there's just a "moral" objection. And about that Administration decision: one wonders if there is going to be a see-saw between Democratic and Republican administrations, the former forcing nuns and such to be connected to contraceptive provision, the latter not forcing nuns to be so connected--but maybe not making any alternative provision to supply employees contraceptives, either.

If there were some kind of compromise solution, e.g., having employers pay not a huge fine, but at least compensate for any externalities/burdens caused, whether compensating by higher wages to women effectively deprived of part of their wages, or compensating through an HSA account for those women, etc.: that type of solution might kill two birds with one stone (employers don't have to provide contraception, but must provide compensation), and could be a viable long-term solution preventing the see-sawing that could occur between alternating Presidents of different parties.

And similarly with the instant case. The present author has talked about "compromises" elsewhere, but here notes that maybe such a compromise is now the best that Petitioners can get. After all, Craig and Mullins do not feel that they've suffered no real externalities or burdens from what Phillips did. (Just as a Gentile-Jew couple who are not served by an Orthodox Jewish baker/photographer/driver/etc., may feel they have been unfairly burdened.) Frankly, if Phillips' lawyers are not honest or sensitive enough to admit that there are real externalities imposed on the couple by refusal of service, Phillips may not have the credibility to "negotiate a compromise" with the Court, and may just suffer a total defeat instead.

So if there are externalities, and no viable free speech claim, and no RFRA to let Hobby Lobby hold sway, the best that Petitioners can do might be to request a partial abatement of fines or damages. Say, no jail, no shutdown, no huge fines or damages. (The Eighth Amendment alone should help defend Phillips, or the Orthodox Jew not serving "mixed" weddings, avoid jail, and maybe any other excessive punishment.)

And see Olivia Solon, Airbnb host who canceled reservation using racist comment must pay $5,000, The Guardian, July 13, 2017, 1:00 p.m., showing that, see id., an actual racist was not jailed or fined in the five- or six-figure range for refusal of service. If so, then why should Phillips, or the owners of Sweet Cakes by Melissa in Oregon, be jailed, or fined in a six-figure amount, for refusal of a gay wedding cake, when a lesser punishment, maybe compensating people for externalities imposed on them, might do?

(It is harder to complain that exemptions for people like Phillips will blow holes in anti-discrimination law, if Phillips or others have to fill those holes--if there are holes--by making some appropriate compensation, making detailed explanations and reports to the State about why their conscience does not let them serve particular expressive events, etc. ...Of course, if there were too much attenuation in the connection of service refusal to the actual event, e.g., if Phillips not only refused to serve same-sex weddings but also refused to serve someone who merely happened to need a snack on the way to a same-sex wedding, then the law might not give him an exemption. There should be a firm connection between refusal to serve, and the particular event which the provider is not serving. Otherwise, the exemption would be incoherent or even dishonest.)

IV. Jim Oleske, and Douglas Laycock and Tom Berg: Too Extreme for a Compromise Solution Thoughtfully Tweaking Smith?

Pundits have written much about Masterpiece lately, of course: one of the more interesting pieces is Jim Oleske's at the "Take Care" blog, Doubling Down on a Deeply Troubling Argument in Masterpiece Cakeshop. Oleske correctly notes, see id., that Douglas Laycock and Tom Berg submitted a brief for Petitioners that may leave too many holes in anti-discrimination law re Smith. However, Oleske himself may not have considered everything in the case.

His article uses a hypothetical of a baker who sees a customer with a hijab, and decides not to serve a Muslim wedding because he thinks it is "satanic". This sounds very unpleasant, of course. But what if you plug into Oleske's scenario, the hypotheticals of the present author above? E.g., the Holocaust survivor forced to serve an Odinist wedding; the Christian forced to serve a genuinely, per-se Satanic wedding; etc. Exemptions for these bakers sound less unpleasant, do they not, perhaps? So, once again, if you grant "nice people" freedom to do things, you may, sadly have to grant "not-nice people" similar freedom.

And Oleske does not consider (as maybe no one in the case except the present author has...) that there could still be some punishment to the baker, and compensation for a couple denied service, even if it is not the full punishment that a statute threatens. Do we really want to criminalize the Orthodox Jewish baker who feels it is sinful to cater a Gentile-Jew wedding? or could his/her refusal be "decriminalized", but still punished (if punished at all) in a more fair and proportional way that would still compensate the actual externalities suffered by the couple?

Thus, maybe Oleske, and Laycock and Berg, while well-meaning, are too "extreme", in different directions, to find a fair solution which preserves the dignity of all parties to a reasonable extent.

Conclusion: What if Phillips Had Numerous LGBT Employees at His Bakery? Less Stressful than Having to Provide Gay Wedding Cakes??

Jumping to another issue, not only for entertainment but also to compare with issues besides wedding cakes: it should maybe be easier for Phillips, if he is no bigot, to decide to accept any number of LGBT employees at his bakery, than for him to bake cakes for gay weddings. After all, baking is not inherently expressive: Phillips has said repeatedly that he would sell LGBT people goods for just about any type of occasion besides a wedding, so he can hardly object to LGBT employees as fellow bakers.

The present author mentions this partially to riff off of his pending brief in Evans, supra. That brief cites the late Tom Petty's untimely death re the brevity and cruelty of life and the consequent need to avoid deliberate cruelty: on that note, it would be "petty" to discriminate against LGBT people in most employment contexts, save for a valid BFOQ (bona fide occupation qualification)...and it might also be petty either 1. to send Phillips to jail (or the poorhouse) for refusing gays a wedding cake; or 2. to let Mullins and Craig go completely uncompensated for the time and disappointment of having to find another baker.

So while Phillips is enjoying all his (hypothetical) new LGBT employees, he may at least have the pleasure of not having to bake wedding cakes for LGBT couples (if his lawyers are smart enough to make viable arguments for loosening Smith). Though, what exact price he pays for that freedom, the Court--or a lower court receiving remand to see just what, or how much, "compensating for externalities" mean--will doubtless determine.