Prof. Michael McConnell (Stanford), one of the leading American scholars of the Religion Clauses, wrote this when Masterpiece Cakeshop came down earlier this month, and I wanted to pass this along, especially since the Court is still considering whether to hear Arlene's Flowers, and other cases are percolating up as well:


The Supreme Court ... confounded all expectations, and decided the highly controversial Masterpiece Cakeshop
case by a 7-2 vote. This is the case about a Colorado baker who, in
accordance with his religious beliefs that marriage is properly confined
to a man and a woman, declined to "design and create" a cake
celebrating a same-sex wedding. The Court held that penalizing the baker
for this refusal to violate his religious convictions violated the
principle that the government "cannot act in a manner that passes
judgment upon or presupposes the illegitimacy of religious beliefs and
practices." The Court emphasized the fact that the State of Colorado had
permitted three other bakers to refuse to provide cakes that expressed
sentiments opposed to same-sex marriage, condemning this disparity in treatment as demonstrating hostility to religious views.


In these days of intense culture conflict, the Supreme Court's 7-2
majority demonstrates that concern about hostility and intolerance
toward religious views is not a right-wing distraction, as some people
say, but a broadly held and fundamental part of our constitutional
values. The Court is to be commended for transcending its political
divisions and delivering that much-needed message. It bears mention that
four of the last five decisions by the Court protecting religious
freedom were by unanimous or 7-2 votes, all of them against the
government and all of them reversing lower court decisions.


The price of a broad majority is typically a narrow—and often a vague—opinion, and Masterpiece Cakeshop
is no exception. The majority opinion, by Justice Anthony Kennedy,
scrupulously avoided expressing an opinion about similar cases that
might arise in "other circumstances" in the future.


But no one should mistake the principle: If a state recognizes the
right of "shopkeepers" to refuse service on the basis of secular
principles, it cannot punish others who refuse service on the basis of
religious principles. The case might be different if all bakers were required to bake all cakes expressing all
ideas—but Colorado did not have such a rule. The constitutional
principle recognized in this case is not of expansive freedom for
religious exercise, but simply of neutrality. The principle is "narrow,"
but it is supremely important.


In a response to an e-mail query of mine, Prof. McConnell elaborated:


Enforcement of a genuine public accommodation law, such as a public
utility law that requires the utility to serve all comers on a
nondiscriminatory basis, would not violate the Free Exercise Clause as
interpreted in Smith, because such a law is neutral and generally
applicable. A law that allows some bakers to choose not to bake cakes
contrary to conscience but requires others to do so, is not neutral or
generally applicable, and warrants strict scrutiny.


If the Hobby Lobby Electric Corp. denied service to a household of
devil worshipers, it would lose a free exercise case under Smith. But if
the Social Justice Water Works were permitted to deny service to the Ku
Klux Klan Country Club, Hobby Lobby Electric's case would be different.
The state cannot allow non-religious people to follow their consciences
but strictly enforce the law against religious people. That, I think,
is the enduring legacy of Masterpiece.


If Prof. McConnell is right, and a state that allows bakers
to refuse to write anti-gay messages must also allow bakers to refuse to
provide cakes for same-sex weddings (or refuse to provide serve to
Satanists), then Masterpiece will be influential indeed. After
all, almost all American laws banning discrimination in most places of
public accommodation let people refuse service on the basis of secular
principles, when the refusal is based on disapproval of a person's nonreligious ideology.
The laws generally ban discrimination based on race, religion, sex, and
national origin, and in many states, counties, and cities based on
sexual orientation. But very few
ban discrimination against customers based on political beliefs. (I
agree that some laws governing public utilities and a few other entities
require them to serve everyone, with only a few exceptions; but the
current debate is about the more common public accommodation
discrimination laws, which only ban certain bases for discrimination.)


Caterers, for instance, are free to refuse to cater a Socialist's
wedding, the birthday of an opponent of homosexuality, an
environmentalist gathering, or a pro-gun-control event. That is true
whether this refusal stems from their religious principles or their
secular principles, and whether the would-be customer's Socialism,
opposition to homosexuality, environmentalism, or support for gun
control stems from the customer's religious beliefs or the customer's
secular beliefs. But caterers are not free to refuse to cater a
Catholic's wedding, or a same-sex wedding, or an interracial wedding
(again, whether this refusal stems from their religious principles or
their secular principles).


If Prof. McConnell's position is that, once a state decides not to
ban discrimination against anti-gay customers (or, to take the other
example, KKK customers), it must likewise allow refusal to supply
same-sex weddings, then such refusals to supply same-sex weddings would
be legal pretty much everywhere. And this logic wouldn't just be limited
to expressive businesses (such as photographers, calligraphers,
singers, or, in the view of some, wedding cake bakers), but would also
apply to caterers, hotels, limousine drivers, and the like.


But I think that's not right as a matter of Free Exercise Clause precedent, which (at least as the Court interpreted it in Employment Division v. Smith)
generally bans discrimination against religious practices. Treating
discrimination based on a person's ideology differently from
discrimination based on a person's sexual orientation is not
discrimination against religion, even if these days refusals to provide
goods and services for same-sex marriages tend to be religiously
motivated.


When someone refuses to make a cake for a same-sex marriage, it may
not be discrimination based on the sexual orientation of the buyer
of the cake; the baker doesn't care about who places or pays for the
order (it might well be a straight friend or family member). But a state
may reasonably interpret it as discrimination based on the sexual
orientation of one set of the ultimate users of the cake—the
marrying couple, who are being discriminated against precisely because
they are engaging in one of the defining characteristics of gays and
lesbians, i.e., showing and pledging romantic love to a member of the
same sex. (This is why we'd treat refusal to bake a cake for an
interfaith wedding as religious discrimination even when the baker
doesn't care about the religion of, say, the mother of the bride, who is
ordering or paying for the cake.) On the other hand, when someone
refuses to make a cake with an anti-gay message, or even refuses to make
any cake for someone who he knows is anti-gay or will use it at
anti-gay event, that is not discrimination based on the buyer's or
users' sexual orientation or religion; the baker doesn't care about the religion of either the buyers or the users of the cake, but only about their beliefs about homosexuality, whether religious or secular.


On the facts of Masterpiece Cakeshop itself, there was evidence that the Colorado courts legally analyzed
the refusal to bake the cake with an anti-gay message inconsistently
with how they analyzed the refusal to bake the cake for the same-sex
wedding; see this post
for more details. But, as Justice Kagan and Breyer argued in their
concurrence—I think correctly, when it comes to the Free Exercise Clause
question—other states don't have to make the same mistake, and yet can
still treat discrimination based on sexual orientation (again, the
sexual orientation of the ultimate users of the cake) differently from
discrimination based on ideological views about homosexuality.


Of course, that still leaves the Free Speech Clause question: Even if
there's no discrimination against religious people in the enforcement
of these antidiscrimination laws, when do the laws impermissibly compel
speech? That is a complicated question, which has been discussed here
and elsewhere in detail (see, e.g., here);
lower courts have been facing it in many cases, and the Supreme Court
may have to return to it. Here Prof. McConnell and I are speaking only
about the discrimination-against-religion Free Exercise Clause question.