Can those engaged in “expressive” endeavors such as making cakes be exempted from anti-discrimination laws which run contrary to their sincerely held religious beliefs? The Supreme Court failed to address the fundamental constitutional issues raised by this question in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The baker in this case, Jack Phillips, claimed that to force him to bake a cake for a same-sex couple violated his right to free speech and the free exercise of his religion. These claims were never addressed by the Court. Justice Anthony Kennedy, as the swing vote was in a bind. If he voted in favor of Phillips, he would have endorsed religiously-motivated discrimination. But if he ruled against Phillips he would have dealt a blow to religion, as he saw it. So, instead he sidestepped the core issue and charged Colorado’s Civil Rights Commission with violating Phillips’ rights by failing to act in accordance “with the State’s obligation of religious neutrality.” (1) While not the ruling Phillips and his supporters were hoping for, they nevertheless celebrated the decision. This celebratory reaction was more than a simple display of confidence; there were actually good reasons to declare victory. Having failed to address Phillips’ constitutional claims, the Court left the door open to bring them up for review once again, possibly in more favorable conditions (i.e. a new Supreme Court justice more favorable to their case). In addition, Kennedy’s ruling gave the religious a weapon to further erode the barriers that divide religion and government. In other words, the seemingly tempered ruling actually established a precedent that could potentially have far reaching consequences. It also reveals more troubling trends in First Amendment jurisprudence that are posed to further erode the barriers which actually protect the equal religious liberty that we so cherish.

Relieved that the Court punted on the issue of religiously-motivated discrimination, many on the left failed to see the radical implications of this “kick the can down the road” decision. The implications were not lost on everyone, however. The constitutional scholars Douglas Laycock and Thomas Berg immediately recognized the significance of Kennedy’s reasoning:

The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise. (2)

The implications of this “ideal” are troubling. Any hint of “hostility” in the creation or enforcement of generally applicable laws could be used to invalidate laws and/or their enforcement. This is not the first time the charge of hostility has been used to discredit laws, and even constitutional principles such as separation, as breaches of constitutionally required neutrality. A review of the Masterpiece ruling reveals some of the problems with the application of the neutrality principle as well as other troubling trends in First Amendment jurisprudence. The barriers that were erected to protect religious liberty are being slowly being dismantled by a conservative court bent on tearing down those prudent barriers.

The 5-4 decision in Masterpiece rests on a breach of neutrality by Colorado’s Civil Rights Commission when first determining whether or not Jack Phillips violated the state’s anti-discrimination law. Kennedy relies on two lines of evidence to make his case. The most substantial piece of evidence comes from a series of other baker-related rulings made by the Commission. In contrast to Phillips, the Commission ruled in favor of the bakers in three other similar cases, which according to Kennedy prove that the Commission was biased against Phillips and his beliefs. Critics of the decision have pointed out the important distinctions between these cases that make them invalid as points of comparison. (3) Having focused on this more substantial line of evidence, few have examined the statements from the member(s) of the Commission which supposedly confirm that the Commission failed to treat Phillips with the neutrality required by the Free Exercise Clause. In terms of evidence these statements seem trivial, which is why the focus has been on the comparison between the bakers’ cases. Most critiques dismiss the statements as irrelevant since they were a few comments made by at most two individuals in a much broader enterprise that involved many other “independent decisionmak[ers].” (4) This in and of itself should have invalidated the use of the comments, but having used them as evidence of hostility towards religion in a Supreme Court decision, their content matters. They have become examples of impermissible “hostility” towards religion. They are also exemplary of broader trends in First Amendment jurisprudence that rest on the abuse of history and language, therefore a review of the substance of these statements is a worthwhile endeavor.

Kennedy included three statements that supposedly expose the Commission’s hostility towards religion in general and Phillips’ religious beliefs in particular. The first two statements were made at a public hearing held on May 30, 2014, and, according to Kennedy, they show that the “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” (5) This damning conclusion is hard to square with the modest statements made by a particular commissioner.

This is Kennedy’s rendering of the first comment: “One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’” (5) Compare this to the full recorded statement:

I don’t think the act [Anti-Discrimination Act] necessarily prevents Mr. Phillips from believing what he wants to believe. And – but if he decides to do business in the state, he’s got to follow (inaudible). And I don’t think the Act is overreaching to the extent that it prevents him from exercising his free speech. (6)

The inaudible section is most certainly “the law” as is consistent with his earlier statements (e.g. “any person that chooses to do business in the state of Colorado has to recognize that they have to conduct business in an ethical and law-abiding way.”). (7) Notice how Kennedy’s addition of the phrase “but cannot act on his religious beliefs” takes the innocuous statement and turns it into something more menacing. It implies that this particular commissioner was broadly opposed to religion in the public square, rather than just opposition to actions that are against the law. To express support for the idea that businesses and their employees should follow the law, even when they disagree with it, is not controversial and it is certainly not an expression of hostility towards religion. If there is any hostility in the statement it is towards breaking the law.

The second statement made by the same commissioner is similarly mischaracterized by Kennedy. The full statement is longer and more nuanced than the first, but rather than quoting the statement in full, as would have been appropriate in this case, Kennedy pulls out a single sentence: “‘[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.’” (5) Maybe “compromise” was not the best word to describe the forbearance required in a religiously diverse society that supposedly respects the rights of everyone equally, but the idea he is conveying is not controversial, which is why, to Kennedy’s consternation, neither the other commissioners nor the “later state-court ruling” disavowed the statements. (5) Looking at the above quote in context we can see that this statement was an attempted paraphrase of Justice Chavez’s ruling in “the New Mexico case” (8) (i.e. Elane Photography v. Willock, 2013). This commissioner was saying nothing more than what the Justice from the New Mexico Supreme Court stated, even if he articulated the Justice’s ideas unartfully. In other words, whatever their personal religious beliefs, businesses serving the public must follow the law.

Recognizing that his interpretation of these statements is a bit of a stretch, Kennedy concedes that they “might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views.” (5) But he ultimately rejects this obvious and commonsense interpretation in favor of an interpretation that presents them as “inappropriate and dismissive comments showing lack of due consideration for Philips’ free exercise rights and the dilemma he faced.” (5) A comment made at a July 25 meeting convinced Kennedy that these statements were not innocent expressions of the logic behind anti-discrimination laws.

This is the statement that Kennedy portrays as “disparaging Phillips’ beliefs”:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others. (5)

Kennedy follows this with this assertion: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.” (5) Notice how Kennedy reframed the statement as one “describe[ing] a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use.’” This commissioner, said no such thing. Instead, he was making the point that religion has all too frequently been used as an excuse to engage in horrible acts. History is littered with such examples. And it was this history that galvanized the movement toward toleration and eventually religious liberty. It was not faith in general but the use of religion to harm others that this commissioner found despicable. Whether or not the commissioner believed that Phillips’ religious claim was “merely rhetorical” is beside the point since he was speaking in general and he had no way of knowing whether or not the beliefs were sincerely held or not.

It is hard to see how the above statements demonstrate impermissible hostility towards religion in general, or Phillips’ religious beliefs in particular. The use of an ill-defined standard such as “hostility” is a formula for abuse. It is questionable whether or not hostility (as opposed to actual discrimination) is forbidden by the Constitution, but before turning to this question let’s review how this standard has been used, and abused, in First Amendment jurisprudence.

The use of the rhetoric of “hostility” is a byproduct of what is known as the neutrality principle, which holds that government cannot favor one religion over another, religion over non-religion, or vice versa. There is a case to be made against the neutrality principle in general, or at least in the way it has been applied, but here I want to focus only on two aspects of its application. First, is the application of the “hostility” standard. Second, the conflation of religion in general with specific religions. This conflation is significant since it has allowed the Court to bypass the Establishment Clause’s mandate to treat religion differently.

The language of hostility arose in conjunction with the so-called neutrality principle, first deployed in a significant way in several cases in the 1960s. (9) The neutrality principle has been championed by those who see it as more accommodating to religion than the principle of separation. For example, in Allegheny v. ACLU (1989) Justice Kennedy dissented against the majority that found a holiday display at the county court house in Pittsburg unconstitutional, arguing that their “view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding.” (10) Several years later in Rosenberger v. University of Virginia, he ruled that the University of Virginia violated the free speech rights of a student publication when it denied them funds from the Student Activities Fund because of their Christian “viewpoint.” Notice how he reframed the issue by identifying the group not as religious but as just another viewpoint protected speech under the Free Exercise Clause. But he still had to get around the Establishment Clause’s ban on public funding of religion. Here’s where the neutrality principle came in handy. He argued that a denial of funds to those simply presenting a religious viewpoint “risk[ed] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires. There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.” (11) (italics mine) While clever, it is a betrayal of the founders’ rights-protecting scheme.

The religious dissenters who fought so hard to disestablish religion during and after the Revolution would be shocked to hear of such a claim. In the fight against a proposed religious assessment in support of teachers of the Christian religion, several dissenters’ petitions repeated Jefferson’s phrase: “That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.” (12) The assessment was soundly defeated, and Jefferson’s Statute for Establishing Religious Freedom was passed in its stead. It was this spirit of disestablishment that lead to the creation and enactment of the Religious Clauses of the First Amendment. To single out religion for special treatment is what makes religious freedom possible. To call this special treatment “hostility” is a betrayal of the legacies of those who fought so hard to disestablish religion and the religious liberty that it was meant to protect.

In a scathing critique of the Courts decision, Winnifred Fallers Sullivan mockingly pointed out that “’[p]reaching the word’ is not speech. It is religion.” He continued, “To treat religion as speech was a clever lawyer’s ploy, and it carried the day in Rosenberger. But something was lost in the process. To efface the difference is to forget history. The dissenters in Rosenberger want to hold onto the difference that religion makes. For them, our public language and our historic commitment to the difference that religion makes is enshrined in the First Amendment.” (13)

This same specious reasoning has become pervasive in conservative constitutional law circles, usually aimed at the principle of separation. Carl H. Esbeck’s statement is typical: “A separation of government from all that is arguably religious (or arguably has a religious foundation) would result in a secular public square, one that is hostile rather than neutral to the influence of religion on society.” (14) A demand for neutrality and equal treatment for religion has already done great harm to the protections established in the First Amendment meant to protect religious freedom, but another devastating blow to the wall of separation is already in the works. After Zelman v. Simmons-Harris (2002) opened the doors to public funding of religious institutions at the federal level as long as money goes to the individual first, the only real obstacle blocking school vouchers has been what are called “Baby Blaines” (state constitutional provisions that ban public funding of religious institutions). Hence there has been a concerted effort to destroy them. (15)

This effort got a big boost last year in Trinity Lutheran v. Comer. In 2012 Missouri’s Department of Natural Resources denied Trinity Lutheran’s Child Learning Center funding as part of their grant program because the state’s constitution banned transfers of public funds to religious entities. Having lost in the lower courts, the church appealed to the Supreme Court, where those rulings were overturned. Chief Justice John Roberts writing for the majority charged the state of Missouri with “discrimination” because it denied the church public funds “solely because it is a church.” (16) To pull this off Roberts had to elide important distinctions of language. Roberts did not use the language of “hostility” to describe the treatment of the church, instead he called it “discrimination.”

The first deceptive maneuver was to use one form of unconstitutional “discrimination” (treating a particular group differently out of prejudice) to declare a constitutional type of “discrimination” (discerning things that belong in the category religion) unconstitutional. Roberts’ argument also rests on another casual use of language. The Missouri Constitution bans public funding “directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such.” In other words, it bans public monies to religious entities (i.e. all religion). But the precedent he turned to (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993) involves the discriminatory treatment against members of a particular religion (Santeria). Conveniently, Kennedy in Lukumi made this conflation possible. He worded the ruling in such a way that it failed to distinguish between religion in general and a particular religion:

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights its secures. …Legislators may not devise mechanism, overt or disguised, designed to persecute or oppress a religion or its practices. (17) (italics mine)

In this scheme, there is no difference between singling out religion as a category from the religious groups that belong to that category. Once this distinction disappears it is easy to declare Missouri’s constitutional mandate to treat all things religious differently as unconstitutional discrimination. A ban meant to bar discriminatory treatment of particular religions or religious denominations, has now become a weapon to get around the barriers in the federal and state constitutions that separate religion from government. (for more detail on this ruling see The Battle for the Wall of Separation) This ruling is supposedly limited to this single situation, however, not all justices in the majority signed on to this limitation.

The stage has now been set to invalidate all state “Baby Blaines,” which is further attached as product of anti-Catholic animus and as such are in violation Establishment Clause’s neutrality principle. (18) Never mind that the principle of no-aid existed long before these little Blaines were enacted, or the fact that not all state bans on public funding of religion were born of anti-Catholic sentiment. (19) The purpose of this attack on these amendments is clear, as Marc D. Stern explains, it “is to invert the traditional church-state debate over aid to religious institutions. In this country, that debate always had been whether a particular form of aid was permissible or forbidden. Under the new approach, the question is whether aid is forbidden as an establishment of religion or mandatory to avoid discrimination against religion.” (20) Both the anti-Catholic and the “discrimination” against religion are likely to be deployed in the next challenge to these state prohibitions, and given the existing precedents and the conservative makeup of the Court, they are likely to succeed in achieving their aims. The Establishment Clause will be reduced to insignificance, a process that began over a decade ago, on the basis of a dubious constitutional principle.

What about the neutrality principle’s companion “hostility”? Does it have any validity as a constitutional principle? Discrimination against particular religious groups such as the Santeria religion are most certainly unconstitutional. This kind of discrimination was one of the primary reasons for the disestablishment of religion. Reflecting on his time in Virginia fighting for religious liberty, the popular Baptist preacher John Leland insisted that “government should protect every man in thinking and speaking freely, and see that one does not abuse another. The liberty I contend for is more than toleration. The very idea of toleration is despicable; it supposes that some have a pre-eminence above the rest to grant indulgence, whereas all should be equally free, Jews, Turks, Pagans and Christians.” (21) To make laws that privilege some over others because of their religious opinions is contrary to the principles of religious liberty, but not toleration. Hence this kind of discrimination should not be tolerated.

But to make hostility, in and of itself, a standard of constitutionality seems absurd. It abridges no one’s ability to practice their religion, and it asks government officials to be robots. In the Lukumi case, if city officials had simply expressed disgust and disapproval of the Santeria religion, but did nothing, or enacted truly generally applicable laws for the purposes of public health, rather than specifically targeting their Church then there would be no breach of the Constitution. Or, conversely, had they said nothing demeaning about that religion but passed ordinances meant to punish the members of that religion it would have been unconstitutional. Statements can be useful, as they were in the Lukumi case, to determine whether or not the ordinances were truly neutral, but the hostile statements themselves should not be unconstitutional. To ask everyone associated with the government to refrain from expressing opinions about certain religions or religious practices is unreasonable and such comments, as horrible as some of them are, are not incompatible with religious liberty. Can you imagine declaring Thomas Jefferson’s Statute for Establishing Religious Freedom null and void because it was born of animosity towards religion? One of the main reasons Jefferson fought so hard to “establish religious freedom” was so that he could say whatever he wanted about religion, most of which was hostile towards it.

Linda Greenhouse’s fear “that the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion” seem well founded. (22) While insignificant in many ways, the Masterpiece ruling reveals a Court gone astray from the principles and purposes of the First Amendment. The dissenters who fought tirelessly to disestablish religion knew all too well the dangers of mixing politics and religion. Their goal of separating religion and government was not a project born of hostility towards religion, but out of a desire to protect religion, as well as the state. After learning of Madison’s veto of a bill providing a land grant to a Baptist Church in the territory of Mississippi on grounds that the support violated the Establishment Clause, two North Carolina Baptist Churches wrote in support of Madison’s decision:

Considering the said affair as proceeding from Some of our Religious Connections and that the Same is not Consistent with the Spiritual Interest of Religion and that the tendency of Such a procedure if perpetuated would inevitably give to Religious Societies an undue weight and Corrupt influence in public affairs at large and diminish Religious enlargement impairing our Civil and Religious liberties and in fine Contaminate our national morals we therefore desire to assure you that we entertain a high Sense of and Confidence in Your Illustrious objection against the Bill wherein we humbly conceive as eminent an Instance of patriotism have displayed as in any occurrence of the kind. (23)

Madison responded in appreciation: “Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself.” (24) It is to this alliance between pious religious dissenters and rationalists like Madison that we owe our legacy of religious freedom to. Knowing all too well the history of religious tyranny, they tirelessly fought to separate religion and government. Their hard work is slowly being undone by those who would ignore the lessons of history. We ignore this history at our peril.

1) Masterpiece Cakeshop v. Colorado Civil Rights Commission, Opinion of the Court, 2.

2) Douglas Laycock and Thomas C. Berg, “Symposium: Masterpiece Cakeshop – not as narrow as may first appear” SCOTUS blog.

3) Masterpiece, Justice Ginsburg’s dissenting opinion (see link above). See also John Corvino, “Drawing a Line in the ‘Gay Wedding Cake’ Case,” The New York Times, (November 27, 2017)

4) Masterpiece, Ginsburg, 7.

5) Masterpiece, Opinion of the Court, 12-14.

6) Joint appendix filed (August 31, 2017), 205.

7) Ibid., 202.

8) Ibid., 207.

9) Arnold H. Loewy, “The Positive Reality and Normative Virtues of a ‘Neutral’ Establishment Clause,” Brandeis Law Journal 41 (2003), 536.

10) Allegheny County v. Greater Pittsburgh ACLU (1989)

11) Rosenberger v University of Virginia (1995)

12) Nansemond County (October 27, 1785) and Northunberland County (November 28, 1785). Library of Virginia: Digital Collection

13) Winnifred Fallers Sullivan, “The difference religion makes: Reflections on Rosenberger,” The Christian Century (March 13, 1996), 294 and 295.

14) Carl H. Esbeck, “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999), 309-10.

15) See Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).

16) Trinity Lutheran v. Comer, Opinion of the Court, 11.

17) Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993.

18) For example see Philip Hamburger, “Prejudice and the Blaine Amendments,” First Things.

19) For a review of this history see Steven K. Green, “’Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle,” 2 First Amendment Law Review (2004).

20) Marc D. Stern, “Blaine Amendments, Anti-Catholicism, and Catholic Dogma,” First Amendment Law Review 2 (2004), 153.

21) John Leland, “A Chronicle of His Time in Virginia,” in L.F. Greene, ed. The Writings of the Late Elder John Leland: Including Some Events in His Life (New York: G. W. Wood, 1845, Public Domain Reprint), 118.

22) Linda Greenhouse, “How the Supreme Court Avoided the Cake Case’s Tough Issues,” The New York Times (June 7, 2018)

23) To James Madison from Jesse Jones and Others, 27 April 1811: From Jesse Jones and Others (April 27—1811). Founders Online

24) Madison to the Baptist Churches in Neal’s Creek and on the Black Creek, North Carolina (June 3, 1811). Founders Online