Monday, October 30, 2017
As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. We argued in short, that
Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.
Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation.
We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:
In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....
... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.
Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.