Before the ink had time to dry on the opinions of the Justices of the Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the volume of commentary on the decision rivaled the record of the case. Much of that commentary converged on a view about the scope of the ruling—namely, that the Court’s decision is relatively narrow and leaves resolution of all the important questions for future cases. On this reading, the Court reversed the ruling below only or primarily because members of the Colorado commission that ruled against Masterpiece Cakeshop expressed their anti-religious bigotry publicly. In the future, state officials can avoid the embarrassment of being reversed or vacated by the Supreme Court if they are simply more discreet about their condemnation or disregard of religious understandings of marriage.
I respectfully dissent.
I am not the only one to doubt that the decision is narrow. David French and Stephanie Barclay have observed that Justice Kennedy’s opinion for the Court vindicates important principles of equality and sets down a bright-line rule prohibiting anti-religious hostility. Those principles and rules reach beyond this particular case. Mark David Hall and PD Editor Ryan Anderson have observed that the decision is likely to reach many similar cases on the facts. Hostility toward traditional views about marriage and sexuality is widespread on the left, and state officials routinely discriminate against religious citizens.
I write separately because the opinions in Masterpiece Cakeshop show two facets that deserve more careful attention.
1. A majority of justices are hesitant to characterize as bigots the millions of ordinary Americans who understand marriage according to its nature as a man-woman union.
2. The intentions of business owners, rather than the foreseen effects of their actions, determine their liability or non-liability under the public accommodation doctrine.
These features of the opinions in Masterpiece Cakeshop suggest that the ruling is more robust than many acknowledge. State officials and judges cannot comply with it simply by articulating facially neutral reasons for decisions that punish people for acting on the understanding that marriage is a man-woman union. Instead, officials and judges should follow the public accommodations doctrine, which state non-discrimination laws codify and extend. That doctrine prohibits owners of certain businesses and non-profit organizations from acting for a prohibited reason (because of a customer’s sexual orientation) and allows acting for a valid reason (because of a good-faith conviction that marriage has an objective nature).
The Justices Are Not Bigots
A majority of the justices are not bigots, and they do not project bigotry onto ordinary Americans. They recognize that Americans have different views about what marriage is, and that those differences do not reflect animus or discriminatory intentions against people who identify as same-sex attracted.
Justice Kennedy’s opinion for the Court speaks of the “difficulties” of the case; claims of dignitary harm appear on both sides. Kennedy has often declaimed that the freedom to define meaning for oneself lies at the heart of the liberty protected by the Bill of Rights and Fourteenth Amendment. In this case, he was manifestly moved by competing claims of personal meaning. The claimants asked commissioners and judges of Colorado to coerce the proprietor of Masterpiece Cakeshop, Jack Phillips, to bake their cake to protect their “dignity.” Kennedy affirmed the “recognition” that “gay couples cannot be treated as social outcasts.” For Phillips, meanwhile, “creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.” Kennedy thought it “inappropriate” that one Colorado official would “compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”
Justice Gorsuch concurred separately to emphasize “the undisputed facts” that Phillips acted not because of animus toward people with same-sex attraction but rather because he understands marriage to consist of a man-woman union by nature:
Mr. Phillips explained that he could not prepare a cake celebrating a same-sex wedding consistent with his religious faith. But Mr. Phillips offered to make other baked goods for the couple, including cakes celebrating other occasions. Later, Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation.
It is true that not all of the justices are as open-minded. For example, in Justice Kagan’s account of Jack Phillips’s motivations, his actual intention and his considered conviction about the nature of marriage simply doesn’t exist. In a footnote in her concurring opinion, she completely left out the fact that the claimants asked Phillips to bake a cake celebrating what he understands to be a falsehood about marriage. Kagan wrote, “The cake requested was not a special ‘cake celebrating same-sex marriage.’ It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.” One presumes that Justice Kagan did not intentionally misstate the facts. So, one is left to conclude that the natural understanding of marriage is simply invisible to her on the record of this case.
Intention is Dispositive
Much has been made of this disagreement between Justice Kagan and Justice Gorsuch about the facts of the case, which they expressed in their respective concurring opinions. But we should not overlook that Kagan and Gorsuch agree on the central legal premise that intention, rather than foreseen effects, determines liability under the public accommodations doctrine. (I made this point in amicus curiae briefs in both Masterpiece Cakeshop and a similar case, Arlene’s Flowers v. State of Washington, and at greater length in an earlier law review article.)
In her concurrence, Justice Kagan (correctly) interpreted Colorado’s public accommodation statute to prohibit acting for certain prohibited reasons. The law does not prohibit acts that merely have discriminatory effects. Kagan referred to a case in which a customer named Jack asked bakers who are in favor of same-sex intimacy to bake a cake bearing a pro-marriage message. Kagan reasoned that the refusal of those bakers was not unlawful discrimination. “In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as [Colorado law] requires.”
Justice Gorsuch agreed. He explained the role of intention in practical reasoning, and in law specifically, in greater detail:
The distinction between intended and knowingly accepted effects is familiar in life and law. Often the purposeful pursuit of worthy commitments requires us to accept unwanted but entirely foreseeable side effects: so, for example, choosing to spend time with family means the foreseeable loss of time for charitable work, just as opting for more time in the office means knowingly forgoing time at home with loved ones. The law, too, sometimes distinguishes between intended and foreseeable effects.
In both cases of claimed discrimination, the cases of Jack and Phillips, “the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication that the bakers actually intended to refuse service because of a customer’s protected characteristic.”
Gorsuch was more modest than Kagan in his statements about the meaning of Colorado law. The statute might forbid only intentional discrimination, or it might also forbid acts that have discriminatory, unintended effects. The problem is that the Colorado discrimination commission used an intentional-discrimination standard in the case of the pro-marriage cake and a discriminatory-effect standard in the case of the cake for the same-sex wedding. “The problem here is that the Commission failed to act neutrally by applying a consistent legal rule.”
This feature of public accommodations law matters in part because intention is a question of fact, not of law. Factual questions are within the province of civil juries. Under most state constitutions, juries also have the power to adjudicate civil rights disputes that arise from common law, such as cases about discrimination in public accommodations. Jurors tend to have more common sense than some discrimination commissioners and attorneys general have recently shown, and judges tend to defer to them.
State officials would do well to refer public accommodations disputes to juries. But this will not entirely avoid the risk of reversal. In their own reasoning about the law, commissioners, attorneys general, and judges should not confuse belief in natural marriage for unlawful discrimination. Like a majority of justices of the US Supreme Court, all Americans should take care not to project bigotry onto their fellow citizens.