Friday, September 1, 2017

ADF files its brief for Masterpiece Cakeshop - Is "Smith" the fatal flaw?

Masterpiece Cakeshop
The counter at Masterpiece Cakeshop includes
a tip cup and a competing donation can for ADF
The case of Masterpiece Cakeshop v. Colorado Civil Rights Commission has begun with the filing of Masterpiece's opening brief before the Supreme Court. Prepared by Alliance Defending Freedom (an anti-LGBT hate group), the brief asserts that proprietor Jack Phillips is a “cake artist” and that his constitutionally protected religious liberty has been compromised by Colorado's nondiscrimination law.

In a separate press release, ADF makes four arguments:
  1. Jack should have the freedom to say “no” to some custom artistic projects while saying “yes” to all people.
  2. Designing custom cakes is artistic expression protected by the First Amendment.
  3. The government should not have the authority to compel or to suppress art.
  4. The government cannot declare that certain beliefs are unacceptable and push them out of the public square.
One through three are dependent upon the Court accepting the proposition that this is original art. Even then it is a considerable task to establish that artistic expression supersedes nondiscrimination laws. Point four begs the question because none of this is based on the government playing referee over beliefs. At issue is not belief but conduct. I will get back to that momentarily. What I wanted to see was how ADF would deal with prevailing precedent.

The first of these is Reynolds v. United States which was decided in 1879. Reynolds, a Mormon, asserted that his religious liberty was unconstitutionally abridged by laws preventing him from, or punishing him for, polygamy. The Court ruled that the First Amendment prohibited Congress from enacting any law that regulated religious beliefs but allows laws that regulate conduct. Reynolds provides a basic tenet of American jurisprudence that has survived challenges for over 130 years.

ADF's brief does not cite Reynolds. Reply briefs will probably directly address what ADF attempts to avoid. ADF will then have to deal with the issue in its rebuttal. But how?

The second case is Employment Division v. Smith, decided in 1990. Smith was a Naive American who was denied unemployment benefits because he was fired for using peyote. Smith claimed that peyote use was part of a religious ritual. Oregon prohibited the use of Peyote and the state's law did not provide a religious exemption.

In crafting its decision, the Supreme Court found that Oregon's law applied to all Oregonians — not just to Native Americans which made the law neutral and of general applicability. Justice Scalia wrote the opinion for the majority. Scalia cited Reynolds v. United States which establishes the doctrine of regulating actions in contrast to belief. Scalia wrote: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Congress passed the Religious Freedom Restoration Act in direct response to Smith. However RFRA only affects federal laws.

ADF does address Smith in what seems at first to be a rather clever approach. They attempt to claim that it bolsters their case:
Two cases encapsulate this Court’s doctrine on neutrality and general applicability. Employment Division v. Smith held that “an across-the-board criminal prohibition” on illegal drug use satisfied both of those requirements, 494 U.S. 872, 884 (1990) … Here, the Commission’s discriminatory application of CADA distinguishes this case sharply from Smith. By punishing Phillips while protecting cake artists who support same-sex marriage, the Commission’s actions raise many of the neutrality and general-applicability concerns …
In the above, I have omitted references to the second case for brevity and simplicity. “CADA” stands for Colorado Anti-Discrimination Act. CADA doesn't seem to “protect” anyone other than those who might otherwise be targeted for discrimination. Moreover, the law is neutral and generally applicable because it applies to all people in Colorado, not just Christians and not just to people of faith. I will be interested to see if Chief Justice Roberts buys any of this. I also want to see how Cato deals with this from a libertarian perspective.

I was astonished that the Court agreed to hear this case. I will be aghast if the Court holds in favor of Masterpiece. It just doesn't seem possible. Citizens United and Hobby Lobby are reminders that the Court is not predictable.

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