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First Amendment

The Etiquette of Animus

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There is a difference between deciding how to talk about a problem and sorting out the principles for resolving it. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1×1. 138 S. Ct. 1719 (2018). the Supreme Court did the former, but not enough of the latter. The case presented a legal conflict between LGBT rights and religious liberty. But the Court ducked central questions raised by that conflict. Rather than sorting out the principles for determining whether religious liberty authorizes discrimination against gays and lesbians in the marketplace, the Court focused on whether state officials treated religious objections with the proper respect and consideration. The Court turned a matter of constitutional principle into one of adjudicative etiquette.

Masterpiece was the first wedding-vendor case taken up by the Supreme Court. All sorts of businesses in the wedding industry have refused on religious grounds to serve gays and lesbians as they celebrate their marriages. Bakers, photographers, florists, graphic designers, videographers, and the owners of wedding venues have attempted to block the application of state civil rights laws that prohibit them from discriminating on the basis of sexual orientation.2×2. See, e.g., Telescope Media Grp. v. Lindsey, 271 F. Supp. 3d 1090, 1099–100 (D. Minn. 2017) (videography); 303 Creative LLC v. Elenis, No. 16-CV-02372, slip op. at 3–5 (D. Colo. Sept. 1, 2017) (graphic design); Country Mill Farms, LLC v. City of East Lansing, 280 F. Supp. 3d 1029, 1038 (W.D. Mich. 2017) (venue); Brush & Nib Studio, LC v. City of Phoenix, 418 P.3d 426, 432–33 (Ariz. Ct. App. 2018) (calligraphy); Elane Photography, LLC v. Willock, 309 P.3d 53, 60 (N.M. 2013) (photography); Gifford v. McCarthy, 137 A.D.3d 30, 33–34 (N.Y. App. Div. 2016) (venue); State v. Arlene’s Flowers, Inc., 389 P.3d 543, 550 (Wash. 2017) (floristry), vacated and remanded, 138 S. Ct. 2671 (2018); Wathen v. Walder Vacuflo, Inc., No. 11-0703C, at 10–11 (Ill. Human Rights Comm’n Mar. 22, 2016) (venue); Bernstein v. Ocean Grove Camp Meeting Ass’n, No. PN34XB-03008, at 5 (N.J. Dep’t of Law & Pub. Safety Dec. 29, 2008) (venue); In re Klein, 34 BOLI 102, 105 (Or. Bureau of Labor & Indus. 2015) (bakery). They argue that public accommodation laws violate their freedom of speech by compelling them to express approval of same-sex marriages. And they claim their religious liberty is burdened when the state forces them to be complicit in celebrating relationships to which they are sincerely and conscientiously opposed.3×3. See Nelson Tebbe, Religious Freedom in an Egalitarian Age 115–41 (2017); Douglas Laycock, The Wedding-Vendor Cases, 41 Harv. J.L. & Pub. Pol’y 49, 62–63 (2018); Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2560–65 (2015); Elizabeth Sepper, Gays in the Moralized Marketplace, 7 Ala. C.R. & C.L. L. Rev. 129, 142–49 (2015).

The wedding-vendor cases raise many questions about the scope of civil rights laws and the limits of First Amendment rights, especially as applied to for-profit businesses.4×4. The conflict between religious freedom and LGBT rights has generated an extensive literature. See, e.g., Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson eds., forthcoming 2018) [hereinafter Religious Freedom]; Same-Sex Marriage and Religious Liberty (Douglas Laycock et al. eds., 2008); see also Andrew Koppelman, Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law, 88 S. Cal. L. Rev. 619, 622 n.15 (2015) (collecting popular and academic sources). But in Masterpiece, the Supreme Court avoided the main conflict between LGBT equality and religious liberty. Instead, it found that the Colorado Civil Rights Commission had expressed religious animosity in determining that Jack Phillips, a Christian baker, had violated state civil rights law by refusing to make a cake for Charlie Craig and David Mullins, a gay couple celebrating their wedding. The Court held that because the state failed to provide “neutral and respectful consideration”5×5. Masterpiece, 138 S. Ct. at 1729. of Phillips’s claim for a religious exemption, it violated his right to free exercise under the First Amendment.6×6. See id. at 1731–32.

Masterpiece is a heavily fact-bound case about religious animus. The case follows in a line of others that prohibit public officials from acting on the basis of prejudice, hatred, or the “bare . . . desire to harm” others.7×7. See U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (“For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446–47 (1985) (citing Moreno for the proposition that “some objectives — such as ‘a bare . . . desire to harm a politically unpopular group’ — are not legitimate state interests” (citation omitted)); Romer v. Evans, 517 U.S. 620, 634–35 (1996) (same); United States v. Windsor, 570 U.S. 744, 770 (2013) (same). These animus cases represent, however haltingly or incompletely, a basic principle of constitutional law, namely, that officials act illegitimately when their conduct is based on wrongful intentions.8×8. See Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban, in NOMOS LXI: Political Legitimacy (Melissa Schwartzberg ed., forthcoming 2019), https://ssrn.com/abstract=3159393 [https://perma.cc/CJF4-KYWS]. A classic work of constitutional law that makes central the wrongfulness of animus and other prejudicial intentions is John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 136–47 (1980). What counts as wrongful may depend on the substantive content of various constitutional provisions, and under the Free Exercise Clause, acts motivated by religious animus are, at least as a prima facie matter, impermissible.9×9. There is a significant literature exploring the concepts of animus and discriminatory intent across a wide range of constitutional doctrines. See, e.g., William D. Araiza, Animus: A Short Introduction to Bias in the Law (2017); Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 Sup. Ct. Rev. 183; Brandon L. Garrett, Unconstitutionally Illegitimate Discrimination, 105 Va. L. Rev. (forthcoming 2019), https://ssrn.com/abstract=3120413 [https://perma.cc/2JEJ-TZWS]; Aziz Z. Huq, Judging Discriminatory Intent, 103 Cornell L. Rev. (forthcoming 2018), https://ssrn.com/abstract=3033169 [https://perma.cc/3KP9-LVVP]; Susannah W. Pollvogt, Unconstitutional Animus, 81 Fordham L. Rev. 887 (2012); Andrew Verstein, The Jurisprudence of Mixed Motives, 127 Yale L.J. 1106 (2018).

In Masterpiece, however, the Court’s reliance on animus doctrine was troubling for several reasons. First, the Court misread the facts to find intentional hostility in the application of civil rights law where none existed. Second, the Court failed to address standard objections to judicial inquiries into public officials’ intentions or motivations. These objections can be answered, but by ignoring them, or dealing with them en passant, the Court introduced various distortions into the doctrine. Third, by focusing on the state’s religious hostility, the Court provided insufficient guidance about the principles governing religious exemptions from antidiscrimination laws. To be sure, the Court rejected more radical lines of argument that would have expanded the scope of exemptions and undermined civil rights laws. But with Justice Kennedy’s departure from the Court at the end of this past Term, the status of limiting dicta in Masterpiece is, at best, deeply uncertain.

These problems of fact, doctrine, and principle point toward a more profound mistake in Masterpiece. In our view, the Court erred by elevating matters of etiquette — the importance of appearing respectful and considerate10×10. See Sarah Buss, Appearing Respectful: The Moral Significance of Manners, 109 Ethics 795 (1999); Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107 (1995). — over giving a reasoned justification for resolving conflicts between religious liberty and antidiscrimination law. While the Court’s rhetoric sounds in religious neutrality and toleration, its reasoning falls short of satisfying a “duty of civility,”11×11. John Rawls, Political Liberalism 217 (1993). which requires providing sufficient justifications for legal decisions. When etiquette takes priority over reason-giving, it loses its normative force and obscures the importance of public justification in maintaining respect for religious beliefs in the public sphere. Finally, it is impossible to ignore the obvious inconsistency between the Court’s demand for tolerance and respect in Masterpiece and its abdication of that demand in Trump v. Hawaii,12×12. 138 S. Ct. 2392 (2018). which upheld President Trump’s travel ban.13×13. See id. at 2423. There are many ironies here, but after the travel ban case, we can find no principled application — no integrity — in the etiquette of animus doctrine.


* Vice Dean and David H. Ibbeken ’71 Research Professor of Law, University of Virginia School of Law. The author participated in an amicus brief filed in the case. See Brief of First Amendment Scholars as Amici Curiae in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111).

** Joseph W. Dorn Research Professor of Law, University of Virginia School of Law. The author participated in an amicus brief filed in the case. See Brief of Church-State Scholars as Amici Curiae in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (No. 16-111). For helpful comments, we thank Charles Barzun, Jessica Clarke, Chad Flanders, Fred Gedicks, Deborah Hellman, Andrew Koppelman, Martin Lederman, Christopher Lund, Ira C. Lupu, Joshua Matz, Melissa Murray, Doug NeJaime, James Nelson, Fred Schauer, Richard Schragger, Elizabeth Sepper, Reva Siegel, and Nelson Tebbe. We thank Dana Raphael and Judy Baho for excellent research assistance.