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By Stephanie Barclay, The Witherspoon Institute, December 3rd, 2017
Why are Christian bakers and florists less worthy of accommodation than groups who would engage in nearly identical behavior for equally expressive, but not necessarily religious, purposes?
Religious exemptions create an “anomaly” in our legal system—an unfair special privilege to ignore the laws everyone else must obey. Worse still, protecting the rights of diverse religious claimants in our nation will “court anarchy” by turning our law into “swiss cheese” and inviting a tidal wave of litigation.
So goes one of the most common refrains raised by critics of religious exemptions. Some prominent free exercise cases have traded on these assumptions. And many recent criticisms of religious exemptions rely on the same assumptions, anticipating the Masterpiece Cakeshop case. But are these arguments really accurate?
In a forthcoming Boston College Law Review article, Professor Mark Rienzi and I point out that courts frequently provide exemptions for other First Amendment claims against generally applicable laws, particularly when it comes to expressive conduct. For example, when the Supreme Court used speech protections to allow a Jehovah’s Witness not to put a license plate on his car that had a motto he disagreed with (even though the license plate law was otherwise valid and applicable), that was an exemption from a generally applicable law. And when the Supreme Court used speech protections to say that a criminal wiretapping act could not be applied against a radio commentator who aired intercepted calls (even though the criminal wiretapping act was otherwise valid and applicable), that was an exemption from a generally applicable law, too.
Notably, when the Supreme Court talks about exemptions in other contexts, it uses terms like “restrained,” “surgical,” “modest,” and “preferred method of constitutional adjudication.” It’s hard to square that with the idea that exemptions somehow morph into what philosophy professor John Corvino calls a “get-out-of-the-law-free card” simply because they arise in the context of religious beliefs.
But is there something uniquely pervasive and dangerous about religiousexemption requests? Is it true, as law professor Jim Oleske and others argue, that allowing religious exemptions to generally applicable laws would “greatly increase the number of cases in which courts would have to answer . . . complicated questions”?
It turns out that the data show just the opposite. Overall, our new nationwide RFRA survey reveals that requests based on religious objections remain much less likely to lead to invalidation of government action than speech objections do. Religious cases are less than a third of all such cases. And even after Hobby Lobby, religious cases as a percentage of the total reported case load appear to have actually decreased.
But what about exemptions from anti-discrimination laws? This issue has prompted some of the most virulent backlash against religious exemptions to generally applicable laws, and it is the issue at the heart of the upcoming Masterpiece case. Here again, the Supreme Court’s cases about expression point the way.
One of the frequent objections raised is that such exemptions are particularly troubling because of the dignitary harm they would inflict on third parties. No doubt the prospect of refusal of service in any context has the potential to be deeply offensive and hurtful, particularly when it involves goods or services related to one’s identity and significant personal life events. And the government’s interest in prohibiting dignitary harms is valid when that interest does not come into conflict with other constitutional rights.
However, in the free speech context, the Supreme Court has consistently held that a government’s desire to protect people from emotional harm—even far more acute emotional harm than is present in many of the wedding vendor cases—does not constitute a compelling government interest. In defense of this principle, the Court has protected speech deeply hurtful to the dignity of others, including protesters at the funeral of a Marine killed in action with signs that say things like “God Hates Fags,” as well as the hurtful decision of the Boy Scouts to completely exclude a gay scout leader. The Court has correctly explained that any other result would “effectively empower a majority to silence dissidents simply as a matter of personal predilections.”
In the public accommodation conflicts currently percolating, including in Masterpiece, none of these business owners has engaged in targeted expression or exclusion that comes close to this hurtful behavior. In Masterpiece, for example, the baker was willing to sell a wide range of baked goods to LGBT individuals; his objection was limited to creating a custom-designed wedding cake for a same-sex wedding. This is true of the run of the wedding vendor cases. In fact, in most of these cases the would-be customer must take the additional step of deducing implied disapproval from the denial of a particular artistic service. It is inherently contradictory to suggest that implicit disapproval is somehow more likely to inflict dignitary harm than a direct and purposefully hateful expression of disapproval allowed in the speech context.
Others such as Professor Joseph Singer have argued that the analysis changes, and anti-discrimination norms must essentially always prevail, when dealing with commercial places open to the public. Such an argument must be broken down to its parts. First, as to profit, the Supreme Court has long held in the speech context: “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” And in Hobby Lobby, seven of the nine Supreme Court justices have at least implicitly recognized that the same principle is true for religious exercise.
Is there, then, something uniquely unassailable about the government’s interest when a service is being offered to the public? To answer that question, one must also answer the following: could the government require a baker who supports Black Lives Matter to bake a Confederate flag-themed cake for a rally being held by the Aryan Nations church? Or could the government force LGBT business owners to bake a cake for a Westboro Baptist Church protest? Does the fact that these bakers offer similar cakes to the public really change the analysis?
It turns out these are not simply hypothetical thought experiments. After the recent neo-Nazi demonstrations in Charlottesville, a swarm of businessesreacted by refusing to continue providing services to white supremacist organizations (including Google, Airbnb, Uber, and PayPal. And in Masterpiece, the Colorado Commission allowed three bakers (including LGBT business owners) to refuse a religious customer’s request to create custom cakes with religious messages criticizing same-sex marriage. The Commission also admitted that a baker could decline to create a cake with a design or symbol that was “offensive,” including “a white-supremacist message for the Aryan Nations church,” or “a religious group’s request for a cake denigrating the Koran.” If one thinks that any of these businesses are justified in denying their services to groups or events to which they object, then one must acknowledge that the government does not have an unassailable interest in coercing any product or service that is already offered to the public.
To be sure, there are some cases dealing with services or products offered in the public sphere where the government would prevail over First Amendment objections. But in the public accommodation context, the foundational government interest capable of trumping First Amendment objections is not avoiding dignitary harms or conscripting public vendors into government service. It is, as the Court has recognized, the government’s interest in “remov[ing] the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups.” And the unanimous Supreme Court in the Hurley case (concerning denial of a gay group’s participation in a privately organized parade) has already pointed to factors that should be assessed when the Court must balance First Amendment rights “on one side of the scale, and the State’s interest on the other.” Specifically, (1) does the public accommodation “disclaim any intent to exclude [a class of individuals] as such” (which would create a more significant barrier to economic or political advancement), or does the public accommodation have a more discrete objection to something like a particular “message” or event; and (2) is the public accommodation “an abiding monopoly of access,” or does the would-be customer have a “fair shot” at obtaining the service elsewhere?
The answers to these questions will vary depending on the evidence the government has marshaled regarding a market failure it needs to address, the economic reality in which the conflict arises, and the breadth of the First Amendment objection at issue. And when courts balance these important interests, the religious objector will not always win. But the important point is that in these balancing scenarios, the religious objector’s rights should be given some weight. The theory advanced by critics would give religious objections virtually no weight at all—resulting instead in an automatic victory for the government anywhere it can point to an abstract interest in prohibiting discrimination. Notably, this crabbed reading of the Free Exercise Clause as necessarily giving way to any anti-discrimination interest has already been unanimously rejected by the Supreme Court in the context of federal and state employment anti-discrimination laws. Thus, the principled alternative is that the government should carry the burden of demonstrating a need to remove barriers to economic and political advancement under strict scrutiny in this context. And that scrutiny should be just as strict regardless of whether the objection that triggers this analysis is based on speech or religious grounds.
Professor Mary Ann Case argues: “Advocates of exemptions from public accommodation laws for service providers who refuse to provide flowers or cake for same-sex wedding celebrations have yet to explain whether and why the claims of these Christian bakers and florists are more worthy of accommodation [than other groups].”
But perhaps the more relevant question for Professor Case and other objecting scholars is this: why are Christian bakers and florists less worthy of accommodation than groups who would engage in nearly identical behavior for equally expressive, but not necessarily religious, purposes? And more broadly, why should religious as-applied challenges be treated less favorably than other First Amendment as-applied challenges? To support a double standard that treats religious exercise as less deserving of protection than any other First Amendment right is the true constitutional anomaly.