Barnette and Masterpiece Cakeshop: Some Unanswered Questions

FIU Law Review Volume 13 Number 4 Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation Article 7 Spring 2019 Barnette and Masterpiece Cakeshop: Some Unanswered Questions Abner S. Greene Leonard F. Manning Professor of Law, Fordham Law School Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview Part of the Other Law Commons Online ISSN: 2643-7759 Recommended Citation Abner S. Greene, Barnette and Masterpiece Cakeshop: Some Unanswered Questions, 13 FIU L. Rev. 667 (2019). Available at: https://ecollections.law.fiu.edu/lawreview/vol13/iss4/7 This Article is brought to you for free and open access by eCollections @ FIU Law Library. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections @ FIU Law Library. For more information, please contact . BARNETTE AND MASTERPIECE CAKESHOP: SOME UNANSWERED QUESTIONS Abner S. Greene* Justice Jackson’s opinion for the Court in West Virginia State Board of Education v. Barnette1 is deservedly famous. Yet, aspects of it raise more questions than they answer. Barnette is rightly seen as the foundation of the Supreme Court’s compelled speech doctrine. But key parts of that doctrine remain under analyzed by the Court. Masterpiece Cakeshop v. Colorado Civil Rights Commission2 offered the Court an opportunity to clarify some of these issues. For religious reasons, Jack Phillips refused to provide a custommade cake for the wedding celebration of a gay couple, Charlie Craig and David Mullins. The Colorado Civil Rights Commission determined that this violated state public accommodations anti-discrimination law, and the state court of appeals affirmed. After the state supreme court declined to hear the case, the U.S. Supreme Court granted certiorari; much of the briefing and oral argument was about whether requiring Phillips to make the cake would amount to unconstitutional compelled expression.3 But the Court resolved the matter on narrower, as-applied, Free Exercise Clause grounds.4 The underlying type of conflict in Cakeshop—between a statutorily protected class of persons and providers of services who claim a set of First Amendment objections to providing such services—is not going away any time soon, however,5 and thus it is fruitful to explore the issues from the Barnette line of cases, as refracted through cases such as Cakeshop. * Leonard F. Manning Professor of Law, Fordham Law School. Thanks to the FIU Law conference organizers for a terrific event. 1 319 U.S. 624 (1943). 2 138 S. Ct. 1719 (2018). The more intuitively obvious claim—that applying the law to Phillips would violate his freedom of religion—would have failed under Emp’t Div. v. Smith, 494 U.S. 872 (1990), which holds that courts should apply only rational basis scrutiny to laws of general applicability that are claimed to violate the Free Exercise Clause. 3 4 The Court held that “[t]he Civil Rights Commission’s treatment of [Phillips’] case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’] objection.” Masterpiece Cakeshop, 138 S. Ct. at 1729. 5 See, e.g., Washington v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. 2017) (holding that there was no constitutional violation to apply state public accommodations anti-discrimination law to a florist’s refusal to provide flowers for a same-sex wedding); certiorari granted, judgment vacated, and case remanded for further consideration in light of Masterpiece Cakeshop, 138 S. Ct. at 1719. See Arlene’s Flowers, Inc. v. Washington, 138 S. Ct. 2671 (2018). 668 FIU Law Review [Vol. 13:667 Here are three compelled speech issues either directly implicated in Barnette or that flow from the doctrine Barnette spawned, all issues present in the Cakeshop litigation: (1) What is the proper level of judicial scrutiny when state action is claimed to compel expression unconstitutionally? In the compelled speech area, should the level of scrutiny differ between a law challenged as facially unconstitutional and an argument that an exemption is constitutionally required? What is the relationship, in First Amendment law generally, between as-applied challenges and claims for constitutionally compelled exemptions? (2) What counts as expression for compelled speech doctrine purposes? What is the relevance of whether a reasonable observer would understand the compelled speaker to be advancing her own views as opposed to merely obeying the law? When is compelled speech properly seen as endorsement, and what is the relevance for the doctrine of whether or not compelled speech is properly seen as endorsement? (3) In the more specific setting of providing goods and services, and the intersection between public accommodations anti-discrimination law and compelled speech claims, what is the relevant difference, if any, between denying a good or service without a specific requested message (say, “no cake for your same-sex wedding celebration!”) and denying a good or service with a specific requested message (say, “no cake for you if you insist that it say ‘God Loves Same-Sex Marriages’”)? What counts as even-handed versus improperly discriminatory administrative or adjudicative determinations in this setting? (1) In the first iteration of compelled flag salute/pledge of allegiance litigation, Minersville School District v. Gobitis,6 treated the matter almost entirely as a Free Exercise Clause case. Plaintiffs were Jehovah’s Witnesses arguing on behalf of their public-school children. The claim was not to invalidate the public-school teacher-led pledge, but rather that the Constitution compels an exemption for religious conscience. Three years after Gobitis answered no, Barnette overruled Gobitis. But the Court did not hold that the Free Exercise Clause requires an exemption in this kind of case. Rather, the argumentative terrain shifted to concerns about compelled speech. The Court held that the First Amendment (without clause specification) compels an exemption from public-school teacher-led pledge of allegiance, not that such activity is facially invalid.7 (And thus publicschool teacher-led pledge of allegiance continues throughout the land. How many school-age children know they have a right not to participate?!)8 Justice 6 310 U.S. 586 (1940). 7 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Lee v. Weisman, 505 U.S. 577, 592–96 (1992), invalidated clergy-led prayer at public school graduation ceremonies, on the ground that although the state did not legally coerce the children to attend and pray, nonetheless psychological coercion to attend and pray—or at least be perceived as praying— was present. Accordingly, such clergy-led prayers are unconstitutional on their face; Lee is not about an 8 2019] Barnette and Masterpiece Cakeshop 669 Jackson didn’t discuss levels of scrutiny, but the opinion reads as a strictscrutiny opinion. Once Jacks (...truncated)