Despite years of case law emptying free exercise, the Supreme Court has now confirmed that government cannot apply laws in a discriminatory way against religious believers.
By John C. Eastman
Progressives’ prompt trivializing of Monday’s victory for religious liberty in Masterpiece Cakeshop v. Colorado Civil Rights Commission is unsurprising, but that many conservatives have reacted in the same way is troubling. Two essays at The Federalist belittled the ruling; Catholic Vote called it a “very small win for religious liberty,” while the Wall Street Journal’s editorial board says the victory for religious liberty “may be short lived.”
An essay at First Things, though, takes the proverbial cake: “Only profound naïveté can spin the majority decision as a victory for religious liberty.” If victory produces this level of lament, it is disturbing to contemplate how conservatives would have reacted to defeat.
Conservative cynicism toward Masterpiece Cakeshop suggests a deep—although somewhat appreciable—misunderstanding of Free Exercise Clause jurisprudence. As I explained when writing about this case at The Federalist before oral argument, despite the popular media and the primary argument made in favor of the baker making this case about free speech, in reality this case “is, fundamentally, about religious liberty.”
The Supreme Court agreed. Despite almost 30 years of Supreme Court case law emptying the First Amendment’s Free Exercise Clause of almost all substantive content (thanks largely to a 1990 decision by Justice Scalia called Employment Division v. Smith), the Supreme Court has now confirmed that the Free Exercise Clause does not let the government apply laws in a discriminatory way against religious believers, even if the laws were not designed to discriminate against those believers, simply because the government finds the religious belief “offensive.”
This Mends a Long Trend of Slashing Free Exercise
You may be surprised to learn that this is the first time since the Smith decision that the Supreme Court has said the Free Exercise Clause reaches that far. Smith rejected a long line of Free Exercise jurisprudence that allowed religious accommodations to laws that are written “neutrally” (meaning the letter of the law does not target religion) and apply “generally” (meaning the law applies to everyone).
Instead, Smith held that any infringement on religious exercise would only receive “strict scrutiny” from a court—the most difficult standard for the government to meet in constitutional law—if the religious exercise was part of a “hybrid” of a free-exercise claim and another constitutional claim, usually a claim under the Freedom of Speech Clause. Even in those “hybrid” cases, Smith said, the court would “specifically advert” the analysis of whether the religious objector should receive accommodation to the other, non-free-exercise claim—again, usually a free-speech claim.
In the decades that have followed, this standard has robbed the Free Exercise Clause of significant teeth. No other individual right specifically enumerated in the Constitution is as difficult to successfully invoke, and nearly all of the landmark religious liberty cases since Smith (for example, Hobby Lobby) have resulted from Congress, in a repudiation of Smith, passing the Religious Freedom Restoration Act into law. Indeed, the way Masterpiece Cakeshop was argued—primarily as a free-speech case, not a free-exercise case—evidences the second-tier status Smith gave to the Free Exercise Clause
Given this history, it is stunning that the free-exercise claim, not the free-speech claim, saved the day in Masterpiece Cakeshop. This alone implicitly rejects Smith’s understanding of “hybrid” situations. This alone also suggests that Smith’s relegation of religious liberty is not as sweeping as it seemed to many at the time it was decided. (Although, as justices Gorsuch and Alito said at the outset of their separate opinion in Masterpiece Cakeshop, Smith “remains controversial in many quarters.”)
The Mend Goes Farther Than Patching Smith
But Masterpiece Cakeshop’s breath of fresh air into the Free Exercise Clause is not limited to its curtailing of Smith. Masterpiece Cakeshop is the first Supreme Court decision to apply Church of the Lukumi Babalu Aye, Inc. v. Hialeah, the 1993 Supreme Court decision that is for all practical purposes what remains of Free Exercise protection after Smith. Better still, in key respects, Masterpiece Cakeshop improves upon Lukumi.
Lukumi confirmed that the Free Exercise Clause, even after Smith, did not leave religious claimants empty-handed—at least not completely—when a law is written in such a way that it targets religion. There, a city passed ordinances that were not neutral, because they applied only to the “ritual” “sacrifices” of animals, not to slaughter more broadly (although they did apply to every “sacrificial” slaughter). As such, the ordinances were clearly designed to target the practices of a particular religion.
While a unanimous Supreme Court concluded that, given the design, the ordinances were not neutral or generally applicable, and thus had to survive “strict scrutiny,” the justices were deeply divided on what evidence could support this conclusion. Moreover, for the next 25 years no Supreme Court decision ever clarified what makes a law “neutral” or “generally applicable”—until Masterpiece Cakeshop.
Government May Not Be Offended by Religious Beliefs
Despite numerous conservative pundits suggesting that Masterpiece Cakeshop was a purely “procedural” decision that was not decided on First Amendment grounds, the Supreme Court’s decision was, in fact, both an application and extension of Lukumi. It also included considerably more unity among the members of the court than Lukumi possessed. The court did not simply accept Colorado’s argument that the state’s public accommodation law was neutral and generally applicable because it was written that way. Nor did the court refuse to apply Lukumi because there was no evidence that the public accommodation statute was designed to target religious believers.
The Supreme Court also rejected limiting its “neutrality” analysis to whether the Colorado Civil Rights Commission treated the baker fairly. Rather, the court applied Lukumi into the distinct process of administrative adjudication to see how the law applied—not how it was designed—and whether the government’s application of that law, not just in the baker’s case but comparing his case to other cases, neutrally pursued a compelling government interest.
The application was non-neutral, the court held, because Colorado would permit other refusals of service that raised the same equal access interest as the baker’s refusal, but Colorado would not permit the baker’s refusal because the state found his reason for refusal “offensive.” Disallowing religious exemptions while allowing other exemptions simply because the government is “offended” by the religious belief seeking an exemption cannot withstand the Free Exercise Clause—even when the law at issue is, like a public accommodation law, written in a neutral and generally applicable way, and not designed to target religious belief.
In short, Masterpiece Cakeshop is the first post-Smith Free Exercise decision where the Supreme Court applied strict scrutiny to a neutral, generally applicable law that was not designed to target religion. Rather, strict scrutiny was triggered because of how the law was applied against religious objectors.
How This Will Affect Other Religious Liberty Cases
The practical significance of this result cannot be overstated. For example, right now in Washington DC the Archdiocese of Washington is being denied the ability to put up signs in the Metro transit system inviting people to attend Mass during the Christmas season. The DC Metro has allowed ads setting forth a secular view of Christmas (such as ads to buy “holiday gifts” at department stores), but not a religious view (like a manger scene with mass times posted below it; the ad that was rejected).
Metro is refusing because, as it told the U.S. Court of Appeals for the DC Circuit, religious ads might be “offensive.” But not to worry, Metro says: its policy is neutrally and generally applicable, and it was not designed to disadvantage religious believers. In fact, its policy restricts all sorts of ads DC Metro deems “offensive,” along with censoring religious ads altogether.
But it is the Metro that gets to decide whether an ad’s reference to religion is sufficiently “religious” or “offensive” to be barred by the policy. It allowed, for example, an advertisement to donate to the Salvation Army, but it did not allow the archdiocese’s advertising of mass times. Masterpiece Cakeshop confirms that, even if this policy was written in a neutral and generally applicable way, even if it was not designed to target religion, the application of this policy provides disparate treatment toward religion and the policy is therefore not neutral.
Don’t Let the Trend Blind You to This Shift
I mentioned above that the misunderstanding of Free Exercise jurisprudence that appears in so much conservative cynicism toward Masterpiece Cakeshop is somewhat appreciable. This is so because Smith’s subordination of the Free Exercise Clause has accompanied the Supreme Court aggrandizing the Freedom of Speech Clause.
As one of Claremont’s John Marshall Fellows, William J. Haun, has explained, this aggrandizement—extending the freedom of speech to depictions of animal torture, graphically violent video games, and lying about receiving military medals, just to name a few of the Supreme Court’s recent extensions—bears no relationship to the freedom of speech as an original matter, the Founders’ political philosophy of natural law and natural rights. It results from “autonomizing” the freedom of speech.
When the developments of the free speech and free exercise doctrines are taken together, the result is conservatives being accustomed to any First Amendment victories being free-speech victories, full of all the rhetorical flourish that accompany the Supreme Court’s expansive approach to expression. This is very different to the case-by-case, fact-specific application of a particular religious objection to a particular government action.
Unfortunately, this shift seems to have blinded some conservatives to seeing a genuine win for the Free Exercise Clause when one comes along. Masterpiece Cakeshop is such a win, and this will surely be borne out in future free-exercise cases.
Dr. John Eastman is a senior fellow of the Claremont Institute and founding director of its Center for Constitutional Jurisprudence. He is also the Henry Salvatori Professor of Law and Community Service at Chapman University's School of Law.