Year 7, Week 16 (April 30–May 6)

This week felt slow at its start, but it started churning out stories hard and fast by the time the weekend wrapped. I’m going to cover most of this week’s stories today, but there are a couple we’ll have to punt to next week–it’s that kind of cycle, apparently.

Standard standing reminders still apply: I may be well into my seventh year of journalism, but I summarize news within my areas of expertise. NNR summaries often contain some detailed analysis that’s outside my expertise–I’m a lawyer, not a strike!–but all offroad adventures are marked with an asterisk. And, of course, for the things that are within my lane, I’m offering context that shouldn’t be considered legal advice. Okay, I think that’s about it for the disclaimers.  Onward to the news!     

Cleanup in Aisle 45:

After a blessed week off, we’re back to Election Rejection news about January 6 and Cool Ranch Mussolini crimes. Here’s what has happened:

The main news stories on the Biden Rebuilding front this week are FDA and CDC updates.  Here’s what I have for you:

Your New Normal:

The Bad:

The Good:

So that’s what I have for you this week, and I’m sorry, there are no news refunds. For making it through, you deserve this cauliflower snack time and a more functional government.  I’ll be back next week with more restructured and improved news, and I hope you will be back as well–but in the meantime, feel free to ping the National News Roundup ask box, which is there for your constructive comments.  Send me questions! Send me feedback! Send me more hours in the day!

Drive-By Analysis of The Masterpiece Cakeshop Case

I’ve seen a lot of people confused about what the Masterpiece Cakeshop decision means, and it’s fair that it’s confusing to people — the Court ruled for the bakery, except they really didn’t, except it does actually create some problems for same-sex couples. I’m doing a drive-by analysis to try to clear things up, and will incorporate notes from the remaining two concurrences and the dissent once I’m able. (But as you can imagine, between this and the Jane Doe case this was a busy day at work, so Today is Not That Day!) If you’re super short on time, here’s the tl; dr version: It doesn’t create license to discriminate, but that doesn’t mean there are no consequences for LGBTA people after today’s ruling.

Main holding:

“When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. . . . [T]he Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.” (taken from page 3 of the opinion, for those playing the home game)

So what does that actually mean?

It means the the Colorado Civil Rights Commission done messed up by being openly contemptuous of religion.

Okay, why?

Because the Free Exercise Clause and Establishment Clause of the Constitution collectively say that the state can’t be openly for or against any particular religion. So the Commission took it a step too far when one of its members invoked the Holocaust and slavery to say that “one of the most despicable pieces of rhetoric that people [like the cake guy] can use [is] to use their religion to hurt others.” (quote from page 14)

So it didn’t say that people can discriminate against LGBT folks by saying it’s their religion?

The court tried to punt that entire question by doing things that made it hard to use this case for anything else. They hung their hat on some stuff that definitely can’t be used again:

  • They stressed that Obergefell (the case that legalized same-sex marriage throughout the country) hadn’t happened yet, and said that this gave the cake shop a reasonable expectation of the legality of their actions that obviously wouldn’t exist moving forward. (p. 11)
  • They focused almost exclusively on what the Commission did, rather than what the cake shop owner did, which means that it’s harder for future business owners to say that the opinion applies to them. (pages 13–18)
  • They literally said in the opinion that this was what they were doing: “Any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose serious stigma on gay persons.” (emphasis mine)(p. 12)
  • And just in case that was misconstrued: “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.” (emphasis mine)(p. 3)
  • And just in case that was misconstrued: “While . . . religious and philosophical rights are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” (p. 10)

So this can’t be used to hurt LGBTA people further down the pike?

Unfortunately, I don’t think that’s true either. Though the court was, for the most part, pretty good about narrowing the scope of what they were saying, as I noted above they touched upon equal access for protected classes (and that part is good). But then the court focused on what they described as the Commission’s “disparity in treatment” between offensive-because-discriminatory products (i.e. cakes that demean gay people), which they generally permitted owners to refuse, and offensive-because-of-religion products (i.e. a wedding cake for a gay couple), which the Commission did not permit this owner to refuse. They conclude that the discrepancy signals an “official disapproval” of the guy’s religious beliefs, and therefore hostility towards him. (pages 15, 16–17)

I personally think this is not only legally wrong, but dangerously legally wrong, because Equal Protection analysis is only supposed to apply to protected classes. LGBTA people are likely a protected class under the line of precedent started by Romer v. Evans and continued by Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges. But people who want to get to discriminate against them definitely aren’t, at least not on the basis of that desire to discriminate. So it was actually appropriate for the Commission to distinguish between the rights of people who are a protected class — i.e. same-sex couples — and the right of a person who wants to practice religion, because Christians, as a majority population, aren’t a protected class. Although I do agree with the Court that comparing the cake situation to the Holocaust was perhaps a bit much under the Free Exercise clause, so it’s less that it was decided wrong and more that the court left a hole big enough for malicious people to drive a truck through.

The way this opinion was written, specifically regarding the “disparate treatment” idea, opens up the door for harassing litigation brought by anti-gay groups with too much money and time on their hands. (Lambda Legal wasted no time in noting this, which I appreciate.) So malicious actors now can force courts to hear cases implicitly or explicitly arguing that they are being discriminated against if equal protection analysis is properly applied. Which is decidedly Not Awesome.

Is what you just said the same as what Justice Kagan said in her concurrence?

Effectively, yes — or at least, she said that the Commission properly distinguished between the gay-people-are-bad cakes analysis and the wedding cake analysis. Her logic was slightly different — she said that the bakers would refuse to sell a bigoted cake to anybody, and the Masterpiece Cakeshop guy specifically refused to sell a wedding cake, which he would sell to a straight couple, to a same-sex couple. So the discrimination was on the basis of the product in the first instance, which is allowed under public accommodations law, and the discrimination was on the basis of the consumer in the second instance, which isn’t allowed. And as part of that analysis, Kagan noted that “a vendor cannot escape a public accommodations law because he religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait” (emphasis mine)(page 4). But since it was in a concurrence, that part isn’t controlling legal precedent; the part that says the opposite in the majority opinion is.

So where does this leave us?

Vigilant and awaiting more nonsense litigation, but with intact legal rights at the moment, I think is the honest answer. It’s not a great decision, and I wish the Supreme Court hadn’t heard the Masterpiece Cakeshop case at all, but the ACLU is correct that it’s also not a license to discriminate. All told, this could have been much, much worse — but that doesn’t mean it was harmless.