After the Supreme Court handed down the decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the same-sex wedding cake case, there was fast consensus that the ruling was a “narrow” one. The court, commentators insisted, had avoided creating any meaningful precedent and punted on the big and potentially difficult questions in the case pitting the baker’s freedom of expression and religion against the same-sex couple’s civil rights and equality. Yet, while the justices certainly found a convenient way out—the court unexpectedly held that the Colorado Civil Rights Commission violated the First Amendment free exercise of religion by expressing hostility to the baker’s religious beliefs—the decision has the potential to be quite broad.
Although the justices never explicitly said so, the court seems to have quietly established that business corporations have religious liberty rights under the First Amendment to the Constitution. If that is right, then Masterpiece Cakeshop could be a groundbreaking decision with profound reverberations in American law.
As cases like Citizens United remind us, business corporations have won an ever-larger number of individual rights under the Constitution. Religious liberty, however, has remained one of the few constitutional rights corporations had not been held to have. (Hobby Lobby held that corporations have religious liberty under a federal statute, which unlike the Constitution could be repealed by ordinary legislation.) Masterpiece Cakeshop subtly extends this right to corporations. And, in time, the case may well be used by many other business corporations whose owners have religious objections to same-sex marriage, LGBTQ rights, or birth control.
Often overlooked in the controversy over the wedding cake was that the lawsuit was brought not only by the baker. It was also brought, as the name of the case indicates, by Masterpiece Cakeshop Ltd., a corporation chartered under Colorado law. That corporation was one of the “people” claiming its rights were violated. And the Supreme Court’s decision in favor of the baker is also a victory for the corporation—one that may enable future businesses to assert that they too have been victims of religious discrimination.
Emphasis on may. For, like so many of us, the justices too gave scant attention to the fact that a corporation was involved in this case. Justice Anthony Kennedy’s opinion for the court discusses the facts exclusively in terms of the baker—someone who clearly has religious liberty rights under the First Amendment—and never even mentions the most controversial question of the corporate entity’s religious freedom. One possibility, then, is that future courts, when confronted with corporate assertions of religious liberty, will say that Masterpiece Cakeshop leaves the issue open and sets no definitive precedent.
History, however, suggests another outcome. Over and over again, corporations have won rights through Supreme Court decisions that, like Masterpiece Cakeshop, provide little or no justification for why corporations as such should be able to claim those rights. In the 1880s, the Supreme Court held that business corporations have equal protection and due process rights with no explanation; the court simply dropped a sentence in an opinion saying they did. In the 1930s, the court ruled that corporations have First Amendment press freedoms, again without offering any reasons for including corporations.
More recently, in cases like Adarand Constructors Inc. v. Peña, the court has allowed business corporations owned by whites to assert they’ve been victims of racial discrimination by affirmative action policies—once more with not a single sentence devoted to explaining why corporations, which have no obvious racial identity, should be able to assert this right. None of this is to say that these decisions are all wrong. But it highlights a pattern of corporations winning rights without the justices giving the question much thought.
Even if Masterpiece Cakeshop does effectively extend First Amendment religious liberty rights to corporations, that right remains limited under current doctrine. In the 1990s, the court held in the Employment Division v. Smith case that the free exercise of religion did not require exemptions from generally applicable laws, such as civil right laws. Those are the types of laws businesses would be most likely to challenge.
But how long will Smith’s rule last? Justice Neil Gorsuch, an avowed originalist, began his concurring opinion (in which Justice Samuel Alito joined) by calling Smith “controversial in many quarters” and citing two law review articles making forceful originalist arguments against Smith. It was a clear signal to lawyers that at least some of the justices are ready to read the First Amendment to require exemptions for businesses like the bakery here—and presumably many other businesses whose owners have religious objections to things like same-sex marriage and birth control.
While Masterpiece Cakeshop was narrow in important ways, it also lays the groundwork for a new era in which business corporations can pick and choose—not only which customers they will sell wedding cakes to but also which laws they will be bound to follow.
One more thing
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