{"id":1883,"date":"2018-01-24T10:00:01","date_gmt":"2018-01-24T15:00:01","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=1883"},"modified":"2018-01-24T10:00:01","modified_gmt":"2018-01-24T15:00:01","slug":"masterpiece-cake-shop-a-recipe-for-constitutional-avoidance","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/masterpiece-cake-shop-a-recipe-for-constitutional-avoidance\/","title":{"rendered":"Masterpiece Cake Shop: A Recipe for Constitutional Avoidance"},"content":{"rendered":"

Photo Credit: Courtesy of Meg<\/a><\/p>\n

By Jonathan Zator<\/a>; Staff Member (Vol. 16)<\/p>\n

A.\u00a0\u00a0\u00a0 An Appetizer<\/h2>\n

A case is a meal, and oral argument is the dessert<\/a>. This is an apt metaphor for a case about a cake. Oral argument is \u201cthe last thing the Court sees and consumes before it either shows its appreciation for the hearty meal\u201d or \u201cchomps [the] arguments to bits<\/a>.\u201d In the oral argument for Masterpiece Cakeshop vs. Colorado Civil Rights Commission, the Justices enjoyed a hearty helping of dessert. Now, the Justices should write the most limited review of the meal possible, or else risk destroying the entire restaurant.<\/p>\n

B.\u00a0\u00a0\u00a0 The Meal So Far<\/h2>\n

In July 2012<\/a>, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack Phillips, design and create a cake for their wedding. Phillips declined to do so. As a rule, he does not create wedding cakes for same-sex weddings because of his Christian religious beliefs. Specifically, decorating cakes is a form of art through which he can honor God. Phillips believes that making Craig and Mullins\u2019 cake would displease God.<\/p>\n

Craig and Mullins filed discrimination charges. Under the Colorado Anti-Discrimination Act (CADA), \u00a7\u00a7 24-34-301<\/a> to -804, C.R.S. 2014, they alleged discrimination based on sexual orientation. An Administrative Law Judge issued a written order in favor of Craig and Mullins. The Colorado Civil Rights Commission affirmed this decision. On appeal, the Colorado Court of Appeals then affirmed the Commission\u2019s ruling.<\/p>\n

The ultimate issue is whether compelling a religious cake maker to design and make a cake for a same-sex wedding violates the baker\u2019s free speech or free exercise rights.<\/p>\n

C.\u00a0\u00a0\u00a0\u00a0 The Dessert<\/h2>\n

The Justices wanted a slice of this case. On December 5, 2017<\/a>, the Court heard arguments from petitioner Masterpiece Cakeshop, Ltd. and respondent Colorado Civil Rights Commission. Kristen Waggoner and U.S. Solicitor General Noel Francisco represented Masterpiece. Colorado Solicitor General Frederick Yarger and David Cole represented the Commission. Amy Howe provided a detailed summary of the argument<\/a>.<\/p>\n

Several Justices voiced support for Phillips. Chief Justice Roberts compared making the cake to forcing a Catholic legal services organization to give marital legal advice to a same-sex couple. Justice Alito focused on the issue that another baker could decline to create cakes opposing same-sex marriage, but Phillips could be forced to make a cake honoring a same-sex marriage. Justice Gorsuch objected to a part of the state\u2019s order that required Phillips to provide comprehensive anti-discrimination training<\/a> to his employees.<\/p>\n

The Court\u2019s more liberal justices mostly sided with the couple. Their questioning focused on showing that writing a ruling for Phillips would be next to impossible without, as Justice Breyer put it, \u201cundermin[ing] every civil rights law since year two<\/a>.\u201d Justice Kennedy, when discussing the impact that a ruling for Phillips could have for the LGBT community, proposed that if Phillips wins he could place a sign to indicate that he would not bake cakes for same-sex couples, which would be \u201can affront to the gay community<\/a>.\u201d<\/p>\n

A significant issue came from certain anti-religious statements. Kennedy raised a statement by a member of the Colorado Civil Rights Commission that \u201creligious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust<\/a>.\u201d The Commission member asserted it is \u201cone of the most despicable pieces of rhetoric that people can use their religion to hurt others<\/a>.\u201d Kennedy asked that if the Justices \u201cthought there was a significant aspect of hostility to a religion in this case<\/a>\u201d then should the Commission\u2019s order against the baker stand? Yarder, for the Commission, responded that \u201cabsolutely, that would be a problem<\/a>.\u201d Roberts chimed in that \u201cwe\u2019ve had this case before<\/a>\u201d when one judge on a three-judge panel was biased. Gorsuch noted that a second (two out of seven) Commission member said something along anti-religious lines. Kennedy returned to this issue later saying \u201ctolerance is essential in a free society<\/a>,\u201d but Colorado has not been tolerant of Phillip\u2019s religious beliefs.<\/p>\n

D.\u00a0\u00a0\u00a0 Reviewing the Meal: Constitutional Avoidance<\/h2>\n

A meal has many parts. Based on the dessert, Amy Rowe believes a conservative majority is leaning toward ruling for Phillips<\/a>, but she did not specify on what grounds. The Court\u2019s best option is to write a short review of the meal by following the canon of constitutional avoidance. Constitutional avoidance is the principle that the Court \u201cshould avoid ruling on constitutional issues, and resolve the cases before them on other . . . grounds<\/a>.\u201d In practice, if the Court faces different possible decisions or interpretations, the Court should decide the issue with the easy constitutional answer to avoid hard constitutional questions and questionable answers. To do otherwise would enter Dred Scott<\/a> territory.<\/p>\n

Targeting the Commission members\u2019 anti-religious comments is the easiest and narrowest possible ruling. Based on the dessert, there are at least five, possibly up to seven, Justices displeased with the Commission\u2019s anti-religious comments. Ruling on this narrower ground is better than entirely upholding the order (harming religious free exercise) or striking the order (hurting the LGBT community and every anti-discrimination law since year two).<\/p>\n

This third middle-ground option can be accomplished by extending the precedent in Lukumi Babalu Aye<\/a>. In that case, the Court \u2013\u2013 unanimously \u2013\u2013 held that a law could not be designed to target specific religious behavior. Extending that decision, to the Masterpiece case\u2019s order, should appeal to both the more liberal and more conservative Justices. If the Court strikes only the Commission\u2019s order because of the anti-religious comments, then deciding for Phillip and upholding the anti-discrimination statute should please the more conservative and more liberal Justices.<\/p>\n

In conclusion, the Court should compromise and decide this case on the anti-religious ground. A single culinary mistake does not demand shutting down a restaurant. A chef may be fired, but a few anti-religious comments should not undo every anti-discrimination statute since year two.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Photo Credit: Courtesy of Meg By Jonathan Zator; Staff Member (Vol. 16) A.\u00a0\u00a0\u00a0 An Appetizer A case is a meal, and oral argument is the dessert. This is an apt metaphor for a case about a cake. Oral argument is \u201cthe last thing the Court sees and consumes before it either shows its appreciation for …<\/a><\/p>\n","protected":false},"author":10,"featured_media":1884,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5],"tags":[28,46,156,157,254,298],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/1883"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=1883"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/1883\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/1884"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=1883"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=1883"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=1883"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}