Thursday, September 28, 2017

Issue Analysis: Wedding Cakes, and Pitfalls of "Common Sense"

A personal note first. While attending Columbia Law School, I learned Civil Procedure from Professor Michael Dorf, who now teaches at Cornell Law School. Professor Dorf runs a popular law blog Dorf on Law along with a number of esteemed law professors. 

One of the Dorf on Law bloggers, professor Eric Segall at Georgia State University College of Law, recently wrote a post on the upcoming Supreme Court case of Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm'n, more commonly known as the "cake baker case for a gay wedding" case. Professor Segall believes that there is no First Amendment protection for the cake baker who, based on his religious conviction, refused to bake a wedding cake for a gay wedding. I disagree with Professor Segall's argument, and this post explains why. 

Fair warning: this post has nothing to do with Asia or transnational litigation / arbitration. If you are a regular reader for those topics, you can safely skip this post. I am writing this post simply because Professor Segall's post piqued my interest--in one part because I am a religious person, and in another part because Professor Segall's post displays a common error in conceptualizing religion that is worth addressing.

Onto the point then. Professor Segall's point can be summarized into the following syllogism: (a) First Amendment only protects the "exercise of religion"; (b) baking a cake is not an "exercise of religion," as selling a commercial product for a profit is not, and cannot be, an "exercise of religion"; (c) therefore, First Amendment is not implicated. One paragraph from Professor Segall's post crystallizes his point:
When a baker who bakes cakes for a living bakes a cake for a wedding, he is not exercising religion, he is baking a cake. We know this because it is obvious. When I go swimming, or appear at a law conference to talk about the separation of church and state, or make business decisions about my employees' health insurance, I am not exercising religion. This idea should not have to be explained.
Contrary to his confident declaration, however, I do think Professor Segall does have to explain. 

What is the error that piqued my interest? The error is that, in Professor Segall's view, "exercise of religion" amounts to no more than "performing a religious act, ritual or ceremony." (Professor Segall might agree, that "exercise of religion" may include certain actions that can be constructively interpreted as a performance of a religious act, ritual or ceremony, such as a pacifist refusal to serve in the military, but let's set that aside for now.)

I find this error interesting because it is so common. My sense is that the current-day United States is so irreligious (which is not the same thing as atheistic) that most Americans have lost sight of what having a religion means. Instead, they focus on the outward signifiers of religion--church attendance, certain garments, or certain dietary codes--and believe religion to be the sum of those signifiers, and nothing more. Note that this is true even with most Americans who consider themselves religious; rather than conceptualizing religion as a comprehensive worldview that guides one's every thought and action, they compartmentalize their lives such that their so-called religion is reduced to a checklist of behaviors that conveniently fits around their pre-existing vice and prejudice. (Rod Dreher recently wrote a good op-ed on the New York Times explaining this type of error committed by conservative Christians.)

But neither the writers of the Constitution nor the Supreme Court jurisprudence on religious freedom ever endorsed this type of irreligious conception of religion. Rather, the Supreme Court has repeatedly established that religion is a fundamental component of one's conscience, and the "exercise of religion" is not reducible only to "religious action, movement or exertion," to use Professor Segall's words. In other words, the First Amendment guarantee for exercise of religion is not merely a guarantee over one's right to attend the church on Sundays, or to refuse to eat pork. Instead, it is part and parcel of the broader guarantee of individual conscience, the most foundational freedom of a liberal political system.

One of the most celebrated Supreme Court cases, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), is the clearest example of this line of jurisprudence. Barnette, famously, involved the refusal of Jehovah's Witnesses to salute the American flag. In what is touted as the finest sentence written in the history of Supreme Court opinion, Justice Robert Jackson wrote: "If 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." Following Barnette, the Supreme Court held in Wooley v. Maynard, 430 U.S. 705 (1977) that the State of New Hampshire must provide an alternate license plate for Jehovah's Witnesses who did not subscribe to the state's motto, "Live Free or Die." In neither Barnette nor Wooley, the "action, movement or exertion" involved (saluting the American flag, driving a car with the state license plate) was a commonly recognized religious signifier. No matter, said the Supreme Court--the First Amendment protects those who refuse to salute, and those who refuse to drive a license plate with a state motto that violated their religious conscience.

To be clear, in Employment Div. v. Smith, 494 U.S. 872 (1990), Justice Antonin Scalia wrote the majority opinion that held generally applicable laws that burden religion do not implicate the Free Exercise Clause. Professor Segall notes that for the cake baker to prevail, the Supreme Court must overturn Smith. I would agree, if we were referring to the most aggressive interpretation of Smith possible. Smith was a clear deviation from the then-existing the Free Exercise Clause jurisprudence, likely occasioned by the Court's willingness to bend to the War on Drugs being waged at the time. (As an aside, Smith is the reason why I am skeptical of the claims about Justice Scalia's learned religiosity.) Based on the standard articulated in Barnette, the most aggressive interpretation of Smith--that a religious exercise is to be compartmentalized into a portion that steers clear of the "generally applicable laws"--cannot stand. At any rate, we have seen the Supreme Court gradually stepping away from the most aggressive interpretation of Smith. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court found that the local ordinance prohibiting animal cruelty infringed upon Santeria church's ritual of animal sacrifice, although prohibition of animal cruelty could arguably considered a generally applicable law. Similarly in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), the court unanimously held that a school run by a church was not subject to a suit by a former teacher based on Americans with Disabilities Act--a generally applicable law if there ever was one. It wouldn't be surprising for the court in Masterpiece Cakeshop to take another step away from Smith.

That is my rejoinder to Professor Segall. As an aside--to me, the most salient legal issue in Masterpiece Cakeshop is not whether cake-baking is a religious exercise. If the prior Supreme Court cases are any indication, it is, depending on the message that a specific cake may impart. (Just as much as a flag salute or driving a car with a certain license plate can be a religious exercise.) What distinguishes Masterpiece Cakeshop from Barnette or Wooley (or even Smith) is not the "exercise" involved, but the means through which such an exercise is regulated. All of Barnette, Wooley and Smith involved a regulation applied directly by the state or state instruments:  public school board, department of motor vehicles, or the state government. In contrast, the regulation in Masterpiece Cakeshop comes from a private person who makes use of a state non-discrimination law. In this sense, Masterpiece Cakeshop is more akin to Hosanna-Tabor, which also involved a private person suing the church based on Americans with Disabilities Act.

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