Colorado Civil Rights Commission Research Articles

Narrow and Shallow Judicial Decisions of U.S. Supreme Court－Values of the Case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

Narrow and Shallow Judicial Decisions of U.S. Supreme Court－Values of the Case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

Obergefell, Masterpiece Cakeshop, Fulton, and public–private partnerships: Unleashing v. harnessing “Armies of Compassion” 2.0?

AbstractFulton v. City of Philadelphia presented a by‐now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court's 9‐0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court‐watchers, Chief Justice Roberts's opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public–private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising 20 years ago over the faith‐based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination. It highlights how, in doing so, they enlisted or rejected analogies between race and sexual orientation discrimination—and between objections to interracial marriage and same‐sex marriage—that were powerful, pervasive, and contested in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission but scarcely featured in Roberts' Fulton opinion.

Constitutional Law and the Culture Wars: When Religious Liberty and the Law Conflict, Which Should Prevail?

Although the Supreme Court ultimately decided to pass on the hard questions posed by Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the case offers a prime opportunity to explore a type of clash between religious liberty and the law that has fueled a great deal of public debate in recent years. The religious liberty claim in the case epitomizes what Yale Law Professors Douglas NeJaime and Reva Siegel have called “complicity-based conscience claims” – claims based on “religious objections to being made complicit in the assertedly sinful conduct of others.” To help answer when, if ever, today’s complicity-based conscience claims should take precedence over conflicting law, this Essay closely examines the religious liberty claim raised, but not decided, in Masterpiece Cakeshop. Part I lays the groundwork for that examination with a brief account of the Supreme Court’s approach to the Free Exercise Clause over the years. In particular, after discussing a 1990 Supreme Court decision, Employment Division v. Smith, that interpreted the Clause in a manner that rendered it much less protective of religious liberty than it had been under the Court’s prior interpretation of the Clause, I call attention to several post-1990 developments that have diminished Smith’s practical significance and breathed new life into the Court’s pre-Smith approach. Part II uses Phillips’s free exercise claim in Masterpiece Cakeshop to illustrate the shortcomings of complicity-based conscience claims when analyzed from the perspective of the Court’s approach to claims for free exercise exemptions prior to Smith. I maintain that Phillips’s claim should fail under the Court’s pre-Smith approach, but I add a caveat: The Court appears likely to revisit its decision in Smith in the not too distant future. If it does revisit Smith, and if it decides to overrule it, there is reason to believe that the Court may adopt a more lenient approach to claims for free exercise exemptions than its pre-Smith approach. The Essay concludes in Part III by turning briefly to a question not implicated by the facts of Masterpiece Cakeshop itself but readily presented by a variation on those facts: If a legislature decides to create a religious exemption, is the Free Exercise Clause’s companion provision in the First Amendment – the Establishment Clause – a significant constraint?

The Overlooked Import of Masterpiece Cakeshop

The Supreme Court’s 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is widely construed as a narrowly tailored opinion with minimal import for the Court’s Free Exercise Clause jurisprudence. This paper submits that in fact, the opinion establishes two largely overlooked but significant principles that must guide future litigation relating to the Free Exercise Clause. It is argued that these components of the Court’s analysis are central to its holding and therefore carry the full weight of stare decisis. The first relates specifically to cases in which free exercise rights collide with the civil rights of LGBT persons, as in Masterpiece itself. The second applies more broadly across free exercise cases in which the purported claim is discrimination against religion in an adjudicatory context. Part I is broken into two sections. Part I (A) posits that Masterpiece elevated important dicta from the Court’s opinion in Obergefell v. Hodges to the full status of a “holding”. Part I (B) argues that Masterpiece implicitly rejected a powerful argument often advanced by LGBT litigants and activists in antidiscrimination cases. Part II explains that Masterpiece did more than simply reaffirm the Court’s opinion in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.

Free Exercise in the Mirror

Recent U.S. Supreme Court cases present an opportunity to apply a new form of analysis to discrimination claims. In 2018’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and 2021’s Fulton v. City of Philadelphia, there is a party complaining about discrimination on each side of the dispute. In both cases, one side (respondent) claims that the other (petitioner) is discriminating on the basis of sexual orientation, while the other side (petitioner) claims that subjecting petitioner to the law prohibiting sexual orientation discrimination itself discriminates on the basis of religion. With discrimination claims coming from both directions, this Article/Essay performs what it calls “mirror-image analysis” to better understand how the Court thinks about the issues it faces in Free Exercise cases. Mirror-image analysis takes a definition that the Court applies to one side of the dispute, whether it is the definition of discrimination or coercion, and considers what the other side’s claim would look like if it deployed similarly capacious definitions of both terms. The Article/Essay uses hypothetical cases, some quite provocative, to help clarify the nature of the Court’s approach to Free Exercise. It concludes that because the religions at issue in both Masterpiece Cakeshop and Fulton were mainstream Christian faiths, it takes a mirror to appreciate how extreme the Court’s analysis of religious freedom has become.

Religious Exemptions Increase Discrimination toward Same-Sex Couples: Evidence from Masterpiece Cakeshop

In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple because of his religious beliefs. This article examines the behavioral effect of this decision in an experiment that measured discrimination toward same-sex couples from 1,155 wedding businesses shortly before and after Masterpiece. I find that Masterpiece significantly reduced the willingness to serve same-sex couples as compared with opposite-sex couples, even among previously willing vendors. Considering the variety of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination after Masterpiece to be between 61 percent and 85 percent. These results show that even a narrowly construed exemption can have a significant and robust, even if inadvertent, impact on a market and its customers. I discuss the implications of these results for research on Supreme Court effects on the public.

A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemptions

What are the consequences of religious exemptions? And what are the normative implications of these consequences? These questions are currently at the center of a heated debate. Opponents argue that granting exemptions would extend LGBTQ discrimination. Proponents of religious exemptions argue that religious exemption would not expand discrimination against same-sex couples. The troubling aspect of this debate is that none of the parties rely on actual data. Particularly missing are data on the effects of exemptions granted in Supreme Court decisions, an issue that the Court has addressed repeatedly in recent years—and is set to do so once again this term, in Fulton v. City of Philadelphia. This Article intervenes in the debate based on the results of a large-scale field experiment that measured the effect of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) on same-sex couples in the wedding market. The field experiment revealed that Masterpiece reduced vendors’ willingness to provide wedding services to same-sex couples as compared with heterosexual couples, even for vendors that provided these services prior to the decision. Following Masterpiece, the odds that same-sex couples would experience discrimination are estimated between 61% and 85%. These results have several implications for the debate on religious exemptions. First, they discredit the argument that the effect of religious exemptions is negligible and that exemptions will not expand discrimination. Second, the results complicate the conventional portrait of religious objection as fixed and unyielding to change, showing that the demand for discrimination is elastic and socially constructed, even when coercion and sanctions are absent. Third, Masterpiece’s negative effects establish the pillar of the strict scrutiny doctrine of religious burdens, by showing that states have a compelling interest to enforce antidiscrimination law without exemptions to ensure access to public accommodations. Fourth, I advance an empirical approach to religion-equality conflicts that can guide legislatures that deliberate whether and how to enact religious exemptions from antidiscrimination laws. Finally, the troubling consequences of Masterpiece require the Supreme Court to proceed with great care as it sets to decide Fulton v. City of Philadelphia and any religion-equality conflict in the future. However the Court decides to resolve the constitutional issue at hand, it must take into account that even a deliberately narrow and case-specific exemption might have a significant negative impact on the market and its customers.

Religious Exemptions Increase Discrimination Towards Same-Sex Couples: Evidence from Masterpiece Cakeshop

In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple due to his religious beliefs. This article examines the behavioral effect of this decision in an experiment (N=1,155 businesses) that measured discrimination towards same-sex couples in the field of wedding services shortly before and after Masterpiece. I find that Masterpiece significantly reduced the agreement to provide services to same-sex couples as compared with heterosexual couples, even among vendors that provided this service before the decision. Considering the variety and number of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination post-Masterpiece between 61% and 85%. The effect is significantly more pronounced in religiously dense environments. These results discredit the frequently-made argument that religious exemptions will not expand discrimination. Instead, the Masterpiece experiment shows that even a narrowly construed exemption can have a significant and robust, even if inadvertent impact on a market and its customers. I discuss the implications of these results for the research on Supreme Court effects on the public.

Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause

One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity. In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom. The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.

The ‘Mere Civility’ of Equality Law and Compelled-Speech Quandaries

Abstract When, if ever, do business owners have a right to be exempted from laws prohibiting discrimination in the commercial marketplace? Although public debate over this question often focuses on the issue of religious liberty, litigants seeking exemptions in court have placed equal or greater reliance on arguments about compelled speech. This article examines how such arguments have been employed in recent high-profile cases in both the UK and the USA. The article also addresses a new variation on the exemption argument inspired by Teresa Bejan’s book, Mere Civility, and the allegedly ‘minimal’ conception of civility Roger Williams advocated in the 17th century. After explaining why reliance on Bejan and Williams is misplaced, the article turns to the key questions that arise under modern compelled-speech doctrine when a business owner seeks to resist an equal-service mandate. The US Supreme Court ultimately sidestepped those questions in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, while the UK Supreme Court (UKSC) offered cursory and unsatisfactory answers in Lee v Ashers Baking Co. This article fills the gap with a more thorough analysis.

Masterpiece Cakeshop and the Foundations of Free Speech and Toleration

Abstract What do Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, other leading cases from the USA, Canada, and the UK, and Teresa Bejan’s concept of ‘mere civility’, teach us about free speech and toleration? This article seeks to answer that question and suggest a path forward that allows people with deep disagreements about fundamental social and moral issues to live peaceably together despite their differences. This article defends two primary claims: First, ‘mere civility’ is complimentary to a broader legal argument for protecting the freedom of all members of a society to espouse and live out their views within the context of the public square and marketplace; and Second, compelling speech (or agreement) under the guise of civility endangers liberty and genuine equality. When freedom is properly protected, ‘mere civility’ is the natural result, while attempts to achieve something more than ‘mere civility’ invariably jeopardize freedom.

Errant Exceptionalism

Should LGBT-rights advocates analogize to race when wedding vendors seek religious exemptions from state public accommodation laws so that they may refuse service to same-sex couples? These wedding vendors concede that courts would reject their religious exemption claim when asserted to refuse serving a different-sex African-American couple. Should the analysis and outcome be the same for religious exemptions sought to refuse serving a same-sex couple? Both the ideological left and ideological right contest the use of the race analogy in these cases, although for largely different reasons. On the ideological right, today’s exemptions seekers bristle at the comparison to the vendors of the 1960s who sought to justify racial discrimination based on religious beliefs. They contend that the vendors of the 1960s were actually racists using religion as a cover for their bigotry. In contrast, today’s wedding vendors contend that they are asserting honorable and sincerely held religious beliefs that justify sexual orientation discrimination. On the ideological left, scholars contend that the race analogy is detrimental to coalition building among marginalized communities, that it leads to essentialism, and that it unduly constricts both the vision of civil rights and the agenda of the LGBT movement. This article tackles the opposition from both the ideological left and the right and makes the argument that LGBT-rights advocates should deploy the race analogy in the wedding vendor cases. In doing so, it adds to the scholarly dialogue about the propriety of the race analogy and contributes to that body of scholarship a taxonomy of the race analogy in the LGBT-rights movement. The race analogy in today’s wedding vendor cases is tantalizing to LGBT-rights advocates because the Court has — in the 1960s case of Piggie Park v. Newman — rejected a religious exemption claim in the context of racial discrimination. The analogy thus played a prominent role in the advocacy surrounding Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the U.S. Supreme Court left open the merits questions concerning religious exemptions. It also left unanswered the ancillary question of whether it will accept or reject the race analogy in these cases — an analogy that, if accepted by the Court, would have significant (if not dispositive) weight in resolving these cases against the wedding vendors. As the Court prepares to take up another religious exemption case in its October 2020 Term, the race analogy will again be raised, litigated, and debated. The article adds a new layer of scholarly dialogue to the race analogy debate by contending that its use in these cases is a constructive method of making legible the intersecting interests of marginalized groups in the marketplace as well as revealing the errant exceptionalism — the lack of doctrinal coherence — if the Court were to permit a religious exemption for one protected class (sexual orientation) but not another (race).

The Right Family

The family plays a starring role in American law. Families, the law tells us, are special. They merit many state and federal benefits, including tax deductions, testimonial privileges, untaxed inheritance, and parental presumptions. Over the course of the twentieth century, the Supreme Court expanded individual rights stemming from familial relationships. In this Article, we argue that the concept of family in American law matters just as much when it is ignored as when it is featured. We contrast policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly disparate areas of recent policymaking—the travel ban, family separation at the southern border, agricultural subsidies, and the religious rights of closely held corporations—we explore the interplay between the family, the individual, and the corporation in modern law. We observe that both liberals and conservatives make use of the family to humanize or empower certain people, and both reject the family when seeking to dehumanize or disempower. Where liberals and conservatives differ is which families they choose to champion. Ultimately, we conclude that the use of family as a mechanism through which to confer rights and benefits is a cover to hide policies that entrench and exacerbate existing racial and religious hierarchies. Further, in the context of family businesses, it risks becoming a steppingstone for radical expansion of rights to businesses themselves. To tell this story, we analyze the use and rhetoric of family in politics, media, and recent Supreme Court decisions such as Trump v. Hawaii (2018), Burwell v. Hobby Lobby (2014), Kerry v. Din (2015), and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).

Perspective by incongruity: Law and rhetoric in Masterpiece Cakeshop v. Colorado Civil Rights Commission

ABSTRACT The Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was decided on the narrow ground that the Colorado Civil Rights Commission violated the First Amendment’s Free Exercise Clause because of hostility toward the owner of Masterpiece Cakeshop. This decision failed to answer a cardinal question of constitutional law, whether or not the First Amendment’s Free Speech Clause could undermine nondiscrimination law. In Justice Anthony Kennedy’s majority opinion, he seized on one particular comment made by a Commissioner about religious freedom that justified ruling against the Commission for its use of discriminatory rhetoric. According to Justice Kennedy, the Commission violated the Free Exercise Clause by describing religious expression as despicable and as merely rhetorical. In this report, I argue that Justice Kennedy’s opinion demands heightened attention for two reasons. First, to describe religious freedom as a justification for prejudice as merely rhetorical is a gross underestimation of the power of rhetoric and provides moral encouragement to anti-LGBTQ+ activists using the legal system to advance a heteronormative agenda. Second, Justice Kennedy’s claim that rhetoric is insubstantial and insincere calls into question the role of the Court, the meaning of the law, and the relationship between the law and rhetoric.

'Without Undue Disrespect': An Open Letter to Justice Anthony Kennedy About His Opinion for the Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018)

On June 4, 2018, Justice Anthony Kennedy announced the judgment of the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018), one of the last opinions he wrote during the three decades he served on the Court. In that historic opinion, Justice Kennedy coined a novel and illogical phrase that had never before appeared in any opinion ever written by any Supreme Court justice in American history, when he commanded lower courts to ensure that government officials evaluating claims of religious liberty treat all religious beliefs and citizens without undue disrespect. It is clear from the context of the opinion that Justice Kennedy mistakenly believed that this phrase was roughly equivalent to the familiar expression, with all due respect. But they are not. In this open letter to Justice Kennedy and his colleagues, the author respectfully points out the Court's pernicious stylistic error, and explains why the phrase coined by the court is a mischievous aberration and a logical absurdity, and graciously invites the Court to correct this mistake before the opinion is finally reported in the United States Reports.

From Piggie Park v. Newman to Masterpiece Cakeshop v. Colorado Civil Rights Commission: Application of the Outward Facing Actions Test to LGBTQ Nondiscrimination Provisions

For over a century courts have embraced a framework distinguishing the behavior of religious organizations on the basis of whether the actions are inward or outward facing. This standard safeguards the rights of organizations to develop and enforce their religious tenets among their members and engage in self government without unconstitutional government intrusion. However, courts have also been clear that the rights of religious organizations to engage in actions that impact members of the general public and non members are not unlimited. As a federal court held in Newman v. Piggie Park Enterprises, the right to believe is not “absolute” and can not be practiced in “utter disregard of the clear constitutional rights of other citizens.” As the legal rights of LGBTQ people become more cemented, it is imperative that courts remain faithful to this well established standard and recognize the rights of LGBTQ people in a way that is consistent with this nation’s civil rights jurisprudence.

Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment (Introduction)

This article develops a novel framework for rights adjudication responsive to an age of bitter partisan polarization. What warrant do judges have to resolve deep conflicts over values in a pluralistic political order? In the American constitutional tradition, the answer has historically turned to doctrinal categories, which draw strength from a claim about expertise: the judicial skill to interpret categorical boundaries beyond which democratic decision-making must not reach. But the categorical approach, as Professor Jamal Greene has powerfully argued in a recent article, risks embracing the absolute nature of constitutional rights as ‘trumps’. It distorts, or simply ignores, salient values and thus further alienates citizens from one another. Proportionality analysis, favored by Greene to replace categoricalism, offers a second answer. But proportionality gives rise to an important inverse dynamic. Proportionality conceives rights not as trumps but as interests and constitutional adjudication as the pragmatic balancing of those interests at singular points in time. While it can authentically claim to keep better track of competing values in the present and justify their infringement, proportionality nevertheless invites the objection that judges have neither the democratic pedigree nor relative competence to weigh the relevant costs and benefits. Proportionality thus strains the legitimacy of judicial review, I argue, by enforcing a rights-absolutism of its own. Proportionality holds the underlying substantive meaning of rights as a constant. It reduces the pluralism of rights adjudication merely to the variable extents to which this content can justifiably be limited or infringed in any individual case of conflict. This loses a crucial achievement of American constitutional theory: the idea that paradigmatic judicial interpretations of rights trace the self-authorship of a democratic polity over time. To the same degree as categoricalism, albeit by different means, proportionality analysis undermines the institutional, hermeneutic, and political resources to transcend or accommodate difference. The article makes two broad interventions in response to these considerations. First, it cautions against a flawed normative overcorrection in the suggested turn from categoricalism toward proportionality in US constitutional interpretation. It reconstructs the variant of absolutism at work in each mode of rights interpretation in light of two distinctive (and unsound) paradigms of constitutional democracy. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence employing proportionality analysis—and examine how such limitations align neatly with those criticisms Greene levels at American categoricalism in various areas of US constitutional law. Second, the article offers an alternative. American constitutional theory requires a novel guiding light, which I term ‘narrative doctrinalism’. On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless, simply to be narrowed or infringed where particular conflicts dictate. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The article develops narrative doctrinalism’s normative and methodological insights in detail. It then applies them to a salient case from the Supreme Court’s prior term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution is likely to guide—for good or ill— how the Court will dispose future analogous conflicts among rights regimes in other areas of law.

Masterpiece Cakeshop: A Formula for Legislative Accommodations of Religion

When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide — legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect sincere religious beliefs. In Masterpiece Cakeshop, a Colorado baker refused to design a cake for a same-sex wedding based on his religious beliefs. Instead of picking a broad winner and loser, the Supreme Court ruled narrowly by finding the Colorado Civil Rights Commission acted with hostility toward the baker’s religious beliefs. At the end of the opinion, the Court provided a formula for legislative accommodations: “[T]hese disputes must be resolved [1] with tolerance, [2] without undue disrespect to sincere religious beliefs, and [3] without subjecting gay persons to indignities when they seek goods and services in an open market.” In this paper, Part I looks at historical examples of legislative and judicial accommodations of religion under the Free Exercise Clause. Part II analyzes the Supreme Court’s decision in Masterpiece Cakeshop and shows how the Court by ruling narrowly left open a solution that could protect both sides. Part III looks at why the legislature is better equipped than the judiciary to solve the issue. It also considers several different approaches to legislative accommodations by examining proposed and enacted legislative accommodations. Part V applies these approaches to see how they would apply to wedding vendors, government officials, and religious adoption agencies.

'‘Male Chauvinism’ Is Under Attack from All Sides at Present': Roberts v. United States Jaycees, Sex Discrimination, and the First Amendment

Today, many take it for granted that discriminating against women in the marketplace is illegal and morally wrong. Roberts v. United States Jaycees (1984) remains a foundational case on government’s compelling interest in prohibiting sex (or gender) discrimination in public accommodations, even in the face of First Amendment claims of freedom of association and expression. Curiously, Jaycees seems comparatively neglected by legal scholars, if measured by the cases included in the various collections of “law stories” or “rewritten opinions” projects. Looking back at the Jaycees litigation reveals the parties wrestling over the reach of public accommodations law and the force of the race discrimination-sex discrimination analogy. The parties and their amici invoked NAACP v. Alabama (1957), a significant root of the constitutional right to freedom of association, in strikingly different ways, and strenuously disagreed about how to compare the Jaycees to the NAACP. How did the parties frame the evident conflict between promoting sex (or gender) equality—women’s full participation in society—and protecting freedom of association? What was at stake for women in being excluded from full membership in organizations, like the Jaycees and all-male private clubs, that provided members an entree to the “Old Boys Network”? What was at stake for the Jaycees and similar organizations in a climate in which (as one amicus put it) “‘male chauvinism’ is under attack from all sides”? In Jaycees, even as the Supreme Court elaborated upon the values advanced by the First Amendment’s protection of freedom of association, it upheld the application of Minnesota’s public accommodations law to the Jaycees’s exclusion of women from regular membership despite the Jaycees’s freedom of speech and association claims. Both aspects of Jaycees live on, as was evident in arguments made in Masterpiece Cakeshop v. Colorado Civil Rights Commission that related sexual orientation discrimination to other forms of “invidious” discrimination that government may prohibit. This article argues that the relationship between freedom of association and gender equality is double-edged. It concludes by returning to the present day, asking whether the Old Boys Network is simply a relic of the past or has continuing potency. It reflects on some present-day controversies over freedom of association and single-sex organizations.

Brief for Professor Kent Greenfield As Amicus Curiae in Support of Respondents, State of Washington vs. Arlene's Flowers and Ingersoll vs. Arlene's Flowers

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance on the authority of Washington corporations to raise constitutional claims of their shareholders. The assertion that Mrs. Stutzman’s rights are synonymous with the corporation depends on Washington state law and runs counter to the foundational Washington corporate law principle, expressed in Grayson v. Nordic Constr. Co., that “[a] corporation exists as an organization distinct from the personality of its shareholders.” This amicus curiae brief addresses the significance of corporate separateness to Washington’s law of corporations and explains how Appellants’ arguments rest on a conflation of those distinctions. This Court’s consideration of the constitutional claims in this case will be aided by a full understanding of these important, antecedent aspects of Washington law.