{"id":2088,"date":"2018-06-08T10:23:31","date_gmt":"2018-06-08T14:23:31","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=2088"},"modified":"2018-06-08T10:23:31","modified_gmt":"2018-06-08T14:23:31","slug":"a-bittersweet-cake-scotus-maintains-the-status-quo-in-masterpiece-cakeshop","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/a-bittersweet-cake-scotus-maintains-the-status-quo-in-masterpiece-cakeshop\/","title":{"rendered":"A Bittersweet Cake: SCOTUS Maintains the Status Quo in Masterpiece Cakeshop"},"content":{"rendered":"

\u00a0The Feast is Over<\/strong><\/p>\n

The Supreme Court recently held in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission\u00a0<\/a><\/em>that an adjudicatory body\u2019s religiously hostile acts, regarding a cake shop owner\u2019s reasons for declining to make a cake for a same-sex couple\u2019s wedding, violated the free exercise clause<\/a>. I argued in Masterpiece Cake Shop: A Recipe for Constitutional Avoidance\u00a0<\/a>for the Court to make the \u201ceasiest and narrowest possible ruling.\u201d The Court did precisely\u00a0that<\/a>.<\/p>\n

Reviewing the Meal<\/strong><\/p>\n

In 2012, Jack Phillips refused to make a wedding cake for a gay couple, citing sincere religious beliefs. The couple filed a complaint with Colorado\u2019s civil rights commission. The commission held that Phillips violated Colorado\u2019s anti-discrimination law. The decision was later upheld\u00a0<\/a>by an appeals court.<\/p>\n

The Supreme Court\u2019s opinion<\/a>, written by Justice Kennedy, applied two precedents to the facts of this case. After reviewing recent developments in marriage case law, the Court recited two fundamental First Amendment Law doctrines. First, generally-applicable laws may limit the exercise of religious beliefs. Second, no government action may be based on hostility toward a religion or religion generally.<\/p>\n

In this case, the underlying law\u00a0<\/a>was permissible, but some non-neutral words of the commission were worrisome. In particular, one commissioner made hostile statements against religion\u2014neither disavowed or objected to. As further evidence of non-neutral intent, the Court found the commission had favored other bakers\u2019 conscience-based objections against designing cakes with anti-gay-marriage massaging. The Court held that the commission did not give Phillips, and his religion-based objections, the same fair shake.<\/p>\n

Taken together, the Court concluded that the Commission\u2019s actions toward religion were filled with fatal non-neutrality. The Court held in favor of Phillips for not receiving fair treatment.<\/p>\n

Three concurring opinions made some separate points. First, it seems Justice Kagan emphasized<\/a>\u00a0the ability of state actors to distinguish message-based\u00a0<\/em>objections from class-based <\/em>objections. Second, Justice Gorsuch appears<\/a>\u00a0to dislike treating religious-objections and conscience-based objections with higher and lower bars for government leniency. Lastly, for addressing<\/a>Phillip\u2019s free-speech claims, Justice Thomas took the cake. He brought numerous arguments for speech and religious expression, finding Phillips an artist and cakes his canvas.<\/p>\n

Justice Ginsburg dissented<\/a>. She disagreed that a wedding cake is speech, that Phillips was disparately treated, and that the commission\u2019s non-neutral statements were insufficient to warrant reversal.<\/p>\n

Implications<\/strong><\/p>\n

At a societally symbolic level, some\u00a0<\/a>heralded the outcome while others\u00a0<\/a>derided it. As for the legal implications, the Court slightly expanded on Church of Lukumi<\/em><\/a> that, regarding non-neutral religious treatment an adjudicatory body\u2019s statements can be reviewed the same as a legislature\u2019s statements. On the other hand, the fact that Justice Kennedy took time to note the hostile comments were not objected to or disavowed may show the Court\u2019s willingness to counterbalance future non-neutral comments if ameliorating statements are made. Overall, it appears the Court\u2019s holding does little to limit or expand LGBT and religious rights substantively; it does less to expand a creator\u2019s free-speech protections for hand-crafted products.<\/p>\n

In the end, after following the canon of constitutional avoidance<\/a>, \u201ctoday\u2019s ruling seemed to leave open at least as many questions as it resolved<\/a>.\u201d The final review of this meal, it\u2019s precedential value, is a resounding \u201cmeh.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0The Feast is Over The Supreme Court recently held in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission\u00a0that an adjudicatory body\u2019s religiously hostile acts, regarding a cake shop owner\u2019s reasons for declining to make a cake for a same-sex couple\u2019s wedding, violated the free exercise clause. I argued in Masterpiece Cake Shop: A Recipe for …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2183,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[5],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2088"}],"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=2088"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2088\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2183"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2088"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2088"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2088"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}