Masterpiece of Misdirection?

Washington and Lee Law Review Volume 76 | Issue 2 Article 7 6-19-2019 Masterpiece of Misdirection? Mark Strasser Capital University Law School, Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons, and the First Amendment Commons Recommended Citation Mark Strasser, Masterpiece of Misdirection?, 76 Wash. & Lee L. Rev. 963 (2019), https://scholarlycommons.law.wlu.edu/wlulr/vol76/iss2/7 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . Masterpiece of Misdirection?  Mark Strasser Table of Contents I. Introduction ...................................................................... 963 II. Masterpiece and Mixed Messaging .................................. 964 A. Background ................................................................ 965 B. First Amendment Implications? ............................... 967 C. Decisionmaker Bias ................................................... 977 III. The Future Implications of Masterpiece Cakeshop ........ 996 A. What Constitutes Bias? ............................................. 996 B. Speech......................................................................... 999 C. Free Exercise............................................................ 1003 D. Antidiscrimination Laws ......................................... 1007 IV. Conclusion ...................................................................... 1009 I. Introduction In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1 the United States Supreme Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple.2 The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry.3 Yet, the opinion, along with the accompanying  Trustees Professor of Law, Capital University Law School, Columbus, Ohio. 1. 138 S. Ct. 1719 (2018). 2. See id. at 1748 (Thomas, J., concurring) (“If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.”). 3. See id. at 1747–48 (Thomas, J., concurring) (stating that the right for same-sex couples to marry had and will continue to conflict with individuals’ right 963 964 76 WASH. & LEE L. REV. 963 (2019) concurrences and dissent, may well destabilize various settled areas of constitutional law and, in any event, likely represents shots across the bow with respect to a number of issues that will make their way before the Court. Part II of this Article discusses Masterpiece Cakeshop, explaining some of the contradictory signals contained within it and why this opinion may prove to be much more significant than many commentators seem to appreciate. Part III discusses some of the ways that the decision may modify First Amendment law and may undermine antidiscrimination protections as a general matter. The Article concludes that the Masterpiece Cakeshop holding permitted the Court to put off for another day resolution of some of the very thorny issues that may arise when sincere religious convictions are in conflict with antidiscrimination laws. Many of the implicit views and approaches contained within Masterpiece Cakeshop suggest that future opinions will be at best quite contentious and at worst insupportable as a matter of reason or precedent.4 II. Masterpiece and Mixed Messaging Masterpiece Cakeshop is a narrow opinion that seems to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry.5 Yet, the opinion has the potential to help bring about significant changes in existing law—the bases for these important deviations are found not in the holding itself but in the factors that the Court implicitly endorses for consideration and in the implicit roles that these factors should play in future cases.6 While the Masterpiece Cakeshop opinion does not change to freedom of speech and expression). 4. See infra Part IV (discussing potential dystopian results of the case). 5. See Masterpiece Cakeshop, 138 S. Ct. at 1747–48 (Thomas, J., concurring) (stating that the Court’s previous decision granting same-sex couples the right to marry has inevitably come into conflict with religious liberty). 6. See id. at 1723 (noting certain factors that might be different from a refusal to sell a cake). MASTERPIECE OF MISDIRECTION? 965 current law, it nonetheless bodes poorly for a reasoned resolution of the difficult issues such cases may present. A. Background When Charlie Craig and Dave Mullins asked Jack Phillips about creating a cake to help them celebrate their wedding, he refused, citing religious opposition to same-sex marriage.7 Phillips, a devout Christian,8 believes that “creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.”9 Craig and Mullins then filed a complaint with the Colorado Civil Rights Commission against Masterpiece Cakeshop and Phillips, alleging that that the bakery had denied them “‘full and equal service’ . . . because of their sexual orientation.”10 Colorado has an ordinance prohibiting discrimination in places of public accommodation.11 The act defines “‘public accommodation’ broadly to include any ‘place of business engaged in any sales to the public and any place offering services . . . to the public,’ but excludes ‘a church, synagogue, mosque, or other place that is principally used for religious purposes.’”12 An investigator found that Phillips had refused to make wedding cakes for six other same-sex couples13 because “his 7. See id. at 1723 (“In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop's owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages . . . .”). 8. See id. at 1724 (explaining that Phillips’s main goal in life is to be obedient to Jesus Christ). 9. Id. 10. Id. at 1725. 11. See COLO. REV. STAT.§ 24–34–601(2)(a) (2017) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public (...truncated)