TSON News | Symposium: Conscience, conditions, and access to civil society

Symposium: Conscience, conditions, and access to civil society

Syndicated from SCOTUSblog. Read entire article here.

Symposium: Conscience, conditions, and access to civil society

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He joined an amicus brief with 33 other legal scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality.

Phillips regards himself, justifiably, as an artist. He is resolved to living out his vocation as an artist in a way that reflects and respects his Christian commitments. In keeping with his understanding of those commitments, he declined to accept a commission to create a custom wedding cake for two men, Charlie Craig and David Mullins, who were planning a celebration of their wedding.

Phillips regularly provides his goods and services without regard to customers’ sexual orientation and he was willing to sell Craig and Mullins a wide variety of other baked goods. Nevertheless, the Colorado Civil Rights Commission determined that he had discriminated based on sexual orientation in a place of public accommodation in violation of that state’s Anti-Discrimination Act. He was ordered to “cease and desist” such discrimination, to take various “remedial measures,” including retraining his staff, and to file “compliance reports” documenting all service denials and the reasons for them. As a result, and – as he sees it – rather than dis-integrate his creativity and his conscience, he stopped designing custom cakes and lost a substantial share of his business. The question before the justices is whether the commission’s order violates the First Amendment.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is an unusual case, but the conflict between the enterprises of promoting equality through anti-discrimination laws and respecting religious conscience by limiting the reach of such laws is real. It is also unavoidable and ineradicable, because of here-to-stay disagreements among people of good will about the meanings of equality, dignity and freedom and about the appropriate aims and reach of governments’ power.

Some try to deny or dissolve this conflict by prescribing a stingy understanding of religious liberty. Obviously, if it is decreed that “religious liberty” can never include a right to discriminate, then the conflict between religious liberty and anti-discrimination laws disappears. It is clear, though, that meaningful freedom of religion does include, sometimes, a right to decide or distinguish in ways that might otherwise violate such laws. The Supreme Court reaffirmed as much, a few years ago, in its (unanimous) ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Churches get to select their ministers and determine their memberships even if they draw lines in doing so. The issue, then, is not whether, but when and why, discrimination is sometimes protected religious exercise – or, as Phillips argues, artistic freedom.

Masterpiece Cakeshop presents the justices with a number of interesting First Amendment questions having to do with expressive actions, compelled speech, general applicability and religious neutrality, the relationship between status and conduct, and the purposes of public-accommodations laws. Even the Supreme Court’s quarter-century-old-but-still-awkward “hybrid rights” exception to the Smith free-exercise rule makes an appearance.


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Along with a large group of legal scholars, I signed an amicus brief arguing that requiring Phillips “to use his artistic talents in a manner violative of his sincere religious convictions offends the vital constitutional commitment to freedom of expression.” This position finds strong support in one of the Supreme Court’s most famous First Amendment cases, West Virginia State Board of Education v. Barnette, in which Justice Robert Jackson wrote that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Step back, though, just for a moment, from the Supreme Court’s First Amendment precedents and doctrines. There could be an additional way to frame the case and the questions it presents. Start with this: One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.

That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.

This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.

So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience?

Some say that requiring Phillips to participate creatively, but unwillingly, in the celebration of a legal marriage is no different than requiring someone who has accepted employment as a firefighter to fight fires. He can, after all, leave the wedding-cake business. But to condition the lawful exercise of his chosen profession on the waiver not only of unfettered freedom of contract but also of the First Amendment right to express – or not – his religiously informed views seems to ask too much. Such a demand crosses over from ensuring access to imposing orthodoxy, from enriching civil society to homogenizing it.

The commission’s defenders argue that Colorado’s condition is necessary to prevent dignitary harms to those whose wedding Phillips refuses to celebrate and to condemn, in the community’s voice, what they regard as his unsound, even offensive, views. It is not clear, though, that our governments have a strong interest in protecting people from the indignity of being offended by disagreement or wounded by disrespect. What’s more, Phillips’ dignity is also at stake, because the official actions against him in effect label as public heresy his conscientious dissent. It is not necessary, in order to accomplish the primary purposes of public-accommodations laws, to condition Phillips’ practice of his craft on an affirmation he cannot in good conscience make and on checking his First Amendment rights at the door of civil society.

This post has been clarified to describe more accurately the baker’s willingness to sell other baked goods to the couple.

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