04 June 2018

Eating Cake, or Not, or Not Prejudicing Decisions

The Supreme Court issued its decision this morning in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n, No. [20]16–111 (04 Jun 2018) (pdf), reversing the imposition of sanctions on the cake "artist." The decision is both indisputably correct — in a way with interesting implications for the pending immigration cases — and substantively wrong but consistent with some existing doctrine (which is itself wrong).

The decision was correct in sending the matter back for reconsideration on the ground that decisionmakers had improperly expressed animus toward a right that was at issue, was within their jurisdiction, was essential to deciding the matter… and had not yet been formally presented. That is — and I wish the Court would get away from its excessive deference to the purported uprightness and integrity of state systems just because they're state systems — there was stated decisionmaker bias. The Commission screwed up; those members who had expressed animus prior to (or even at) the hearing should have been recused, and a different panel should have been called in if they all were. This, of course, has some interesting implications for the pending immigration cases… because the same kinds of evidence of "bias" that were held against the Commission are present in the present Administration's statements (both before and after the 2016 election) regarding immigration policy.

In its substance, though, this case is wrong, at a definitional level. "Free exercise of religion" does not extend to "violation of civil rights." The Court this morning points out that, at the time the dispute arose, same-sex marriage was not yet "the law" in Colorado, which necessarily complicates things. (I would argue that same-sex marriage was not yet "the law" in Colorado at the time precisely because some people misused conceptions of "free exercise" as a rationale for their bigotry, but that's for another time.) A true originalist would look carefully at what "free exercise" might have meant in the eighteenth century, and in particular in the context of the century following the Glorious Revolution. That originalist would discover that exclusion of non-co-religionists from commercial transactions — even those involving artistic fabric prints in Liverpool and Manchester — was not understood as part of "exercise of religion" under the common law of England by the 1760s. That originalist would then be confronted with a more-difficult question: Whether the individualized creation of a cake is enough different.

This time, the Court punted, without having to reach the fundamental issue in Bleistein: The very competence of the judiciary to determine whether a piece before it is "art." (And this is, perhaps, very fortunate for the creators of the Jack Chick comics… and even more-inimical examples. Some of which are in museums.) It will be unable to do so if the Colorado Civil Rights Commission repairs its procedural errors and reaches the same substantive result, and the matter returns — probably just in time for the 2019 Term of Court, leading to a decision in mid-2020 just in time for the presidential election cycle. (Which would be bad, bad, baaaad for the quality of both public discourse and the decision itself.)

But it's a coffin-corner punt as to the immigration cases, and the Administration doesn't have Rocket Ismail to run the punt out. (Identity of potential punt returner chosen with malice aforethought.) If the relatively benign statements of certain members of the Colorado Civil Rights Commission were sufficient to demonstrate inappropriate animus — and they were; as a commanding officer and staff officer, I was in the trenches on these sorts of things for many years, and I'm all too aware of how the appearance of bias has collateral effects that are unpredictable in their details but entirely predictable in their effect on respect for everyone and everything involved — one shudders to think about the gyrations that will be necessary to evade the same conclusion regarding Drumpf's statements, in the face of civil-rights law and even fundamental authorization from Congress that is much more specific and inconsistent with those statements.

Then, too, there's a second-level philosophical issue: Is there a difference between "free exercise of religion" and "free speech, including the right not to speak"? I don't pretend that this is an easy question; I think it makes a difference in this particular case only if "free exercise" is misinterpreted to include "bigotry when justified by some doctrine labelled 'religion' notwithstanding that doctrine's inconsistency with the rest of the purported belief." That way lies the religious justifications for Jim Crow, guys, and any reading of the Fifth and Fourteenth Amendments that does not acknowledge that as an issue equally applicable to religious-doctrine-justified discrimination on any other basis also ignores the three hundred years of history preceding the Constitutional Convention.