I’m amazed by those pundits who offer a thorough analysis of Supreme Court cases within hours of their publication. I find it takes a bit of time to digest court decisions, especially when the court serves up an unexpected resolution, as was the case in Masterpiece Cakeshop. So after a few days of chewing on Justice Anthony Kennedy’s majority opinion, let me present a few points that I believe have been overlooked.
A number of pundits are portraying the result as a huge victory for religious liberty, while a few are claiming that it wasn’t much of a win. I think the result was a victory in obvious ways, but also that Kennedy’s opinion includes two unperceived potential dangers to our “first freedom.”
The baker’s win means religious freedom wasn’t dealt a fatal blow. The court might have ruled decisively against Jack Phillips and set the precedent that generally applicable non-discrimination laws don’t run afoul of the First Amendment’s protections of religious free exercise or free speech. That seems to be how Justices Ginsburg and Sotomayor view the matter, and it might be how Justices Breyer and Kagan would rule given the right set of facts—i.e., a case without obvious religious animus.
But the court didn’t reach that result. Sometimes not losing is itself a kind of victory. Religious liberty won this battle against the aggressive extension of non-discrimination law by not losing.
Storm Clouds Ahead
Look past that case-specific result, however, and things don’t look as good for religious freedom. Kennedy, in fact, might have advanced a novel reading of the free exercise clause that departs from past jurisprudence and could significantly curtail legislative efforts to protect religious liberty.
Kennedy imported from Establishment Clause jurisprudence the idea that government actors should be neutral toward religion. “The Colorado Civil Rights Commission’s consideration of this case,” Kennedy said, “was inconsistent with the State’s obligation of religious neutrality.” “When the Colorado Civil Rights Commission considered this case,” he continued, “it did not do so with the religious neutrality that the Constitution requires.” “Given all these considerations,” he concluded, “the Commission’s actions here violated the Free Exercise Clause . . . .”
Does the free exercise clause now require the state to be neutral toward religion? In some establishment clause cases the court has appealed to neutrality, but it usually has done so in the context of state benefits flowing to religious schools or organizations, e.g., the court has asked whether tax-funded school voucher programs included religious schools on neutral grounds. [See, e.g., Zelman v. Simmons-Harris (2002).]
For the free exercise clause, precedents have focused on hostility toward religion. A law might meet the non-hostility doctrine by being neutral toward religion—this is basically what the court said in Oregon v. Smith (1990) and found wanting in Lukumi Babalu Aye (1993). But the “nonpersecution principle,” to use Kennedy’s phrase from the latter case, was the underlying doctrinal standard, not neutrality.
“The state may not suppress or persecute or be hostile toward religion” is a very different doctrine than “the state must be neutral toward religion.” The former gives legislatures latitude to protect religious individuals and institutions by granting exemptions from generally applicable laws—the classic example is legal exemption for conscientious objectors from military service, a practice that dates back to the Founding era. The latter would prohibit laws that favor religion. State Religious Freedom Restoration Acts (RFRA) laws that grant religious exemptions from burdensome but generally applicable laws pass the non-hostility doctrine. They may not pass the neutrality doctrine.
The Big Question
If Masterpiece Cakeshop marks a doctrinal shift from non-hostility to neutrality, the court has fundamentally altered its interpretation of the free exercise clause in a way that might significantly limit legislative efforts to safeguard religious freedom.
That is a big “if,” of course. The court didn’t announce that it intended to make a doctrinal shift, and Justice Kennedy’s statements about state “neutrality” could be read to mean that the state can’t be hostile toward religion. When I brought this point to the attention of a preeminent church-state scholar, he responded, “I think Justice Kennedy (perhaps not realizing what he’s saying) doesn’t think that the Free Exercise Clause requires ‘neutrality’ in a way that calls into question religion-friendly exemptions.” That analysis is probably correct. But perhaps the author of Supreme Court majority opinion should be a bit more careful and attentive to what he writes.
Justice Kennedy’s opinion also presumes an approach to religious free exercise that is incompatible with the plain meaning of the Constitution’s text, though his approach is so commonplace nobody seems to notice or care. Kennedy writes,
The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.
Kennedy presumes that the constitutional right of religious exercise must be “balanced” against other state interests. Sometimes the balance will tip against religion; when it does, the state can limit individuals’ free-exercise rights.
Transforming a Fundamental Right
As I said and have discussed elsewhere, this understanding of religious free exercise is commonplace and, as Kennedy correctly pointed out, is found in past precedents. The problem is that these precedents and the balancing approach to the first amendment are incompatible with the Constitution’s text. The First Amendment states: “Congress shall make no law. . . prohibiting the free exercise [of religion]” (emphasis added). One might think that “no law” means “no law.” Kennedy and the court have transformed the first amendment to read: “The State shall make no law prohibiting the free exercise of religion except when it has a compelling reason to do so.” That amounts to a radical transformation of our constitutional right to religious free exercise. What the Founders made categorical, the court has made conditional.
The Founders didn’t believe government must be neutral toward religion or that government could ever have a “compelling state interest” in limiting our rights of free exercise. Indeed, George Washington wrote that “the establishment of civil and religious liberty is the motive which induced me to the field [of battle].” The Framers of the First Amendment protected religion because they held religious freedom as a great good.
Justice Kennedy doesn’t have a clue about what the free exercise clause originally meant or, perhaps, even what it has recently meant. Masterpiece Cakeshop might have ended well for Jack Phillips, but it also might provide the main ingredient for a less palatable future jurisprudence on religious freedom.
Photo credit: Joe Amon/The Denver Post via Getty Images