Thursday, September 7, 2017

Focus on the Family, Billy Graham et al hedge in Masterpiece Cakeshop brief

Masterpiece Cakeshop
The amicus briefs are beginning to flow to the Supreme Court regarding Masterpiece Cakeshop v. Colorado Civil Rights Commission. One of the latest was submitted by Billy Graham Evangelistic Association, Christian Care Ministry, Eco: A Covenant Order of Presbyterians, Focus on the Family, Kanakuk Ministries, Pine Cove, Samaritan’s Purse, The Christian & Missionary Alliance, The Navigators, The Orchard Foundation, Tyndale House Publishers, Association of Christian Schools International, and Association of Gospel Rescue Missions.

Like the merits brief, they too ignore Reynolds v. U.S. 1879 (the state may not regulate belief but can regulate conduct) while claiming that Employment Division v. Smith provides precedence. They attempt to construct the argument that, unlike Smith, Colorado's law is not neutral. I have commented on this in more detail at the link above.

I want to pay particular attention to the “Statement of Interest of Amici Curiae”
The Colorado statutory definition of “place of pub- lic accommodation” at issue in this case is extremely broad and does not distinguish between for-profit and nonprofit organizations. In addition, the law re- quires places of public accommodation to be open to all, not just with respect to sexual orientation, but also regardless of distinctions based on religion. As public accommodation legislation expands in scope, amici in- creasingly rely on religious exemptions to conduct their activities in a manner consistent with their dis- tinct religious convictions.
The first part of that is interesting. If the state did distinguish between for-profit and nonprofit entities then Masterpiece would be on the losing end. The middle part about requiring admission to all regardless of religious interests seems pointless. A public accommodation provides goods and services to the public. A shop selling Jewish paraphernalia probably won't attract many Christians although there is the possibility of a gift purchased by a gentile for a Jew. I can foresee no reason why our hypothetical shop would have a policy excluding anyone based on religion. The phrase “distinctions based on religion” is ambiguous and could also include (or preclude) LGBT people. The intent of the Colorado law is just the opposite and the state has a bona fide interest in limiting discrimination.

As for the last part, I am not sure that public accommodation legislation has expanded in scope. In many places it has contracted or been specifically precluded by laws designed to limit rights of LGBT people. The amici responsible for this brief might very well rely on some religious exemption in order to conduct their activities but to what extent? Furthermore Masterpiece Cakeshop has no interests in common with the amici.
The Colorado statute exempts from the term “pub- lic accommodation” places that are “principally used for religious purposes.” But if the small business in this case, which is operated in accordance with its owner’s religious beliefs, does not qualify for this exemption be- cause its activities are not sufficiently religious, then some of amici’s ministry activities also might not qual- ify for the religious exemption. Moreover, if free exer- cise and free speech rights do not protect the religious exercise and expression in this case, then these rights likely will not protect amici from public accommoda- tion laws that burden their religious exercise.
Are they seriously suggesting that a for-profit bakery is principally used for religious purposes? Are they seriously suggesting some sort of commonality between the bakery and a charity? I find that very hard to accept. A bit later on (after some history):
[The commission] did not think that Masterpiece qualifies for the religious exemption. But the record reflects that Mr. Phillips operates Masterpiece to honor God in ac- cordance with his religious beliefs. Pet. App. 274a-82a. Moreover, the religious exemption covers other places engaged in activities similar to secular and commercial activities. Therefore, the Commission has implicitly in- terpreted the religious exemption to require not only that Masterpiece be principally used for its owner’s re- ligious purposes, but also that Masterpiece’s activities be sufficiently religious.
They fail to identify any examples
Such a “religiosity” test has been rejected as a test for religious exemptions by both Colorado and federal courts (and the Colorado General Assembly). Courts have consistently held that such a test violates Consti- tutional principles of religious deference and neutral- ity. The courts have held that government officials have no competence or authority to measure the relig- iosity of an organization’s activities based on some lit- mus test of perceived religious content, and that using such a test invariably favors orthodox religious activi- ties (such as church schools) over less conventional re- ligious activities.
I think that we can safely assume that baking cakes for all occasions (except same-sex weddings) is not a religious endeavor. Baking Passover matzohs is probably a religious endeavor but even there, I can find no need to discriminate regardless of the matzoh-maker's religious beliefs What they are trying to interject is that Colorado tests for the religious sincerity of the proprietor and that is simply not the case. Making a determination between what is a religious activity and what is not does not seem to be a great challenge.

Later on and you had to know that this was coming:
… this Court has held that a for-profit corporation may exer- cise religion through commercial activities. Hobby Lobby, 134 S.Ct. at 2771. In Hobby Lobby, this Court held that the company exercises religion because its “statement of purpose proclaims that the company is committed to . . . Honoring the Lord in all we do by operating . . . in a manner consistent with Biblical principles.” Id.
That is not in context. In Hobby Lobby the Court was not pitting the rights of one group against another in the same way that nondiscrimination laws protect diversity. What is at issue in Hobby Lobby is law vs the Religious Freedom Restoration Act. However RFRA does not apply to state laws. RFRA was a direct reaction to Employment Division v. Smith. Which means, given that RFRA has no effect on the states, Smith prevails as the law of the land and Scalia was abundantly clear that there are no religious exemptions to otherwise applicable law.

Furthermore, one cannot reasonably compare Hobby Lobby to Masterpiece Cakeshop. Hobby Lobby has not discriminated against customers. The challenge to Hobby Lobby had nothing to do with the fact that Hobby Lobby operates public accommodations. I would be willing to bet that one could test Hobby Lobby stores with numerous scenarios including gifts for an engaged same-sex couple or purchases by a same-sex couple associated with their wedding and Hobby Lobby would gladly take their money. Hobby Lobby even hires trans employees. Subsequent to the Supreme Court case an employee in Illinois did have to sue to gain accommodation to the gender appropriate bathroom so they are far from perfect. However there has been no controversy that I am aware of over public accommodations laws.

Just my 3 cents as I try to sort out what I am going to do relevant to the coming storm.

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