Masterpiece Without Free Exercise: When Will the Court Settle Religious Liberty-Gay Rights Conflicts?
During the Supreme Court’s next term, in 303 Creative LLC v. Elenis, the Court will decide whether applying a public accommodation anti-discrimination law to compel an artist to speak or remain silent violates the First Amendment’s Free Speech Clause and “[abridges] the freedom of speech.”1 Just four years ago, the Court ducked the same question in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), ruling in favor of owner John Phillips on the basis of religious hostility by the state instead of the merits of the questions presented.2
But Masterpiece, with a very similar set of facts, included one more question: whether Colorado had violated Phillips’ First Amendment rights by “prohibiting the free exercise” of religion — which the Court declined to take up in granting certiorari in 303 Creative.3 In fact, the Court has had multiple opportunities in recent years to resolve the tension between the rights of same-sex couples and those of citizens with deeply held religious beliefs. In Masterpiece, as well as Fulton v. City of Philadelphia (2021), the Court could have delineated the balance between competing rights claims but opted for less sweeping, ultimately less satisfying reasoning instead.
While settling this tension may not have been necessary or ideal to resolve either case, it reflects a broader trend of opting for narrower, more cautious rulings designed to postpone the fundamental free exercise and gay rights conflict at stake. While the Court’s free speech decision (if it decides the case on the basis of the question presented) would be consequential, its framing allows the Court to sidestep looming questions about free exercise doctrine and delay quelling the fundamental tension between competing rights with which they intersect.
Website designer Lorie Smith, seeking to begin designing wedding websites, maintains that she cannot design sites for same-sex weddings, as it is inconsistent with her religious faith, and intends to deny service to same-sex couples and publish a webpage explaining her beliefs. In 303 Creative, she asks the Court to hold that the Colorado Anti-Discrimination Act (CADA) unconstitutionally forces her to engage in both compelled speech, by prohibiting her from refusing to design websites for same-sex weddings, and compelled silence, by forbidding her from publishing a statement.4
Smith is challenging the same statute at play in Masterpiece, in which the Court found that Colorado violated its obligation of religious neutrality in enforcing CADA against Masterpiece Cakeshop, which had refused to design a custom wedding cake for a gay couple on religious grounds.5 Both cases feature compulsion to engage in unconventional forms of speech — by endorsing same-sex marriage not in a broadcast or pamphlet but in the provision and message of a cake or website — that violate the sincerely held religious beliefs of the business owner.
On the free exercise question, the Court would have determined whether CADA’s application to religious business owners is “neutral and generally applicable,” a standard from the landmark Employment Division v. Smith (1990), in which the Court held that the Free Exercise Clause permits generally applicable laws to burden religion incidentally.6 CADA prohibits businesses from denying service to individuals on the basis of sexual orientation and from publishing any statement to that effect, though it permits exceptions for primarily religious places and for public accommodations whose services have a bona fide relationship to sex-based restrictions.7
Exceptions like these are a point of contention within the Smith framework, and according to Smith’s attorneys, they are dispositive that CADA treats religious conduct worse than comparable secular conduct and is thus not generally applicable.8 For instance, The Tenth Circuit Court disagreed, upholding CADA on the basis that the exceptions did not undermine its general applicability and that it survived strict scrutiny — meaning it is narrowly tailored to advance the government’s compelling interest of ensuring equal access to public accommodations.9 A few years before, in Masterpiece, the Supreme Court instead found evidence of religious animus in the record and ruled in favor of Masterpiece Cakeshop — acknowledging that “some future controversy involving facts similar to these” would provoke an answer to “the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power.”10
In addition to the Court’s avoidance of underlying doctrinal issues in Masterpiece, its free exercise decision in Fulton further illustrates its preference for narrowness and delay in resolving religious-gay disputes. In Fulton, the Court ruled in favor of a Catholic foster agency that was denied a contract renewal by Philadelphia for refusing to serve same-sex couples, finding that individualized exemptions from Philadelphia’s anti-discrimination statute compromise its general applicability and trigger strict scrutiny, a standard that the city ultimately did not pass.11 This ruling was a narrow clarification of the Smith doctrine, not a broad proclamation on the rights conflict the case touched that many expected to be the basis of its decision. It was rather easy for the Court to give free exercise a court victory but avoid the underlying question — the Catholic organization offered to refer same-sex couples to one of the more than 30 foster agencies that contract with Philadelphia, meaning that the right of same-sex couples to adopt a child was not actually imperiled by the free exercise claim.12 When circumstances like those of Fulton and Masterpiece render a conclusive decision unnecessary, the Court has jumped to avoid one.
In 303 Creative, the Court has found its way forward: that free speech provides less contentious grounds for resolving the case than free exercise. First, Smith is highly disputed amongst the conservative wing of the Court. Though Justice Antonin Scalia authored the Smith opinion, many religious liberty advocates (including the liberal American Civil Liberties Union) believe its standard of general applicability is too deferential to the government and enables too much regulation of religious conduct that should be protected.13 Justice Samuel Alito, in a Fulton concurring opinion joined by Justices Clarence Thomas and Neil Gorsuch, called for the overrule of Smith, writing that the Court’s resolution was “a wisp of a decision that leaves religious liberty in a confused and vulnerable state.”14 Justice Amy Coney Barrett, too, expressed doubts in Fulton about the doctrinal basis of Smith, though she says she does not know what would replace it and did not sign onto Justice Alito’s opinion.15
With a 6-3 majority, the Court’s conservatives have broad latitude to shape free exercise doctrine — and could have used 303 Creative to do so. But with this case presenting nuanced doctrinal issues around a 30 year-old, unsatisfactory precedent, it is possible the Justices do not want to further develop free exercise doctrine on the basis of a precedent that they do not believe can provide an acceptable resolution to the tension between religious liberty and gay rights. The future of Smith is highly uncertain, and the Court is trying to delay addressing it.
Moreover, the purely free speech grounds of the case present plenty of material to resolve the case. Courts across the nation have interpreted the First Amendment’s intersection with public accommodation laws in vastly different ways. The Arizona Supreme Court has held that public accommodation laws cannot compel speech, whereas the New Mexico Supreme Court treats commercial expression such as that in 303 Creative as conduct that can be regulated.16 The circuit split between the Eighth and Tenth Circuits alone provides an impetus for the Court to resolve this case, and in tandem with its reluctance to rule on religious liberty, free speech grounds are a fine way to do so.
There is little doubt that the Court will have to lay out clear principles for sorting through issues with tradeoffs between religious liberty and state power to prevent discrimination against same-sex couples. Nor is there much doubt that even a resolution of 303 Creative on Free Speech Clause grounds will bear insights into the Court’s thinking on matters of religious liberty. But the challenge of 303 Creative is not limited to free speech doctrine; it is inextricably tied to the balance our pluralist American project must navigate between free exercise of religion and gay rights. The Court will eventually be forced to confront this issue head on, but in the meantime, it has declined a decent vehicle in which to do so and cemented its status as a narrow and cautious decision-maker.
References
1 “First Amendment.”
2 “Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).”
3 “First Amendment.”
4 “Supreme Court to Hear Case of Website Designer Who Won’t Do Same-Sex Weddings - WSJ.”
5 “Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).”
6 “Employment Division v. Smith, 494 U.S. 872 (1990).”
7 “Code of Colorado Regulations.”
8 “Tandon v. Newsom, 593 U.S. ____ (2021).”
9 “303 Creative, et al. v. Elenis, et al., No. 19-1413 (10th Cir. 2021).”
10 “Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).”
11 “Fulton v. Philadelphia, 593 U.S. ___ (2021).”
12 “Fulton v. Philadelphia, 593 U.S. ___ (2021).”
13 NW, Washington, and Inquiries, “The Smith Decision.”
14 “Fulton v. Philadelphia, 593 U.S. ___ (2021).”
15 Ibid.
16 Petition for a Writ of Certiorari at 10, 303 Creative LLC v. Elenis, No. 19-1413 (U.S. Sept. 24, 2021)