A team of conservative lawyers filed a petition in the Supreme Court on Friday, effectively asking the Court to allow religious conservatives to discriminate against same-sex couples.
This latest case, Klein v. Oregon Bureau of Labor and Industries, presents many of the same issues that arose last term in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, billed as an epic showdown over whether religion can be used to discriminate, wound up being resolved in a nothingburger opinion holding that states must be exceedingly polite to religious conservatives when those states enforce their civil rights laws.
Yet, while Klein is factually quite similar to Masterpiece Cakeshop, the lawyers behind Klein ask for an even more aggressive decision than religious conservatives sought in Masterpiece. They do not simply ask for a decision permitting their client to discriminate, they ask the Court to completely overhaul its interpretation of the Constitution’s promise that everyone can freely exercise their religion — and to overrule a 28-year-old precedent authored by Justice Antonin Scalia in the process.
Nine lawyers signed the Klein petition, including C. Boyden Gray, who served as White House counsel to President George H.W. Bush.
Notably, Masterpiece Cakeshop came before the Court when Justice Anthony Kennedy, a Reagan appointee with moderate views on gay rights, was still an active justice. Kennedy is now retired, and his seat is occupied by Brett Kavanaugh, a staunch conservative who seemed to vow revenge against Democrats during his confirmation hearing after Kavanaugh was credibly accused of committing sexual assault in high school.
Kavanaugh’s presence on the Court, in other words, makes it very likely that there will now be five votes holding that conservative religious business owners — or at the very least, religious bakers who oppose same-sex marriage — will gain a special right to discriminate. The most important question in a case like Klein, in other words, is likely to be just how big a victory the Supreme Court hands to the religious right, not whether Christian-identified conservatives ultimately prevail.
What a “small” victory for the Christian right looks like
The facts of Klein, as mentioned above, are quite similar to the facts of Masterpiece Cakeshop. Melissa and Aaron Klein owned a bakery that makes custom wedding cakes, and they refused to make such a cake for a lesbian couple. The Kleins claim it is “sinful” to celebrate same-sex marriages, and thus claim they have a right to defy an Oregon law prohibiting discrimination on the basis of sexual orientation.
As the Klein legal team notes in their brief, this case “presents the constitutional questions that the Court did not answer in Masterpiece Cakeshop.” Yet, it is worth noting that the answers to some of these questions can be limited to a narrow set of cases where so-called “artists” claim a right to discriminate. Team Klein argues, for example, that the Kleins’ custom cakes are works of art, and that it would be an unconstitutional form of compelled speech to require the Kleins to produce this “art” for a couple of whom they disapprove.
It’s a stretch to claim that, when a vendor sells a product to a customer — even if that vendor produces a custom product — that this sale conveys any message whatsoever other than “I am a businessperson in the business of selling this product.” Moreover, should the Supreme Court hand down a decision holding that “artists” enjoy a special right to discriminate, they will force courts into the unenviable task of having to determine what is art.
As Justices Ruth Bader Ginsburg and Elena Kagan noted during the Masterpiece Cakeshop argument, if a baker is an “artist,” why isn’t a florist, a hairstylist, or a makeup artist? And if the definition of an artist is that they make custom works, just how customized much these works be? Does a Subway “sandwich artist” count as an artist because they customize the specific mix of meats and veggies included on each sub?
Yet, while a special right for anti-gay “artists” would raise all kinds of complications for future cases, such a right could at least be limited. Realistically, courts are likely to draw the line determining who constitutes an artist somewhere between custom wedding cake bakers and fast food workers. The exact placement of this line is likely to be arbitrary, but it probably would not be drawn somewhere that would give all businesses the right to discriminate if they claim a religious justification for doing so.
Or, a big victory for the religious right
Like the lawyers in Masterpiece Cakeshop, Team Klein also claims that the Kleins’ religion gives them a right to discriminate — that is, in addition to claiming that the Kleins have a free speech right to discriminate, their lawyers also argue that they have a right to discriminate rooted in religious liberty.
Yet Team Klein doesn’t just argue that these particular bakers should receive a special accommodation because of their faith. They argue that the Supreme Court should overrule one of its most important religious liberty decisions, potentially casting much of American law into turmoil in the process. And they make this argument as conservative justices are busy rewriting the history of America’s religious liberty law.
To understand just how radical Team Klein‘s proposed regime would be, one needs to first understand the last 40 years or so of the Supreme Court’s religious liberty case law.
Employment Division v. Smith is one of the most fraught cases in the Court’s pantheon of religion decisions. In an opinion by Justice Antonin Scalia, Smith held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Thus, a religious objector must obey the same laws that everyone else most obey, so long as those laws do not single out people of faith for inferior treatment.
Smith was decided in 1990, and it almost immediately became a lightning rod. Three years after Smith, Congress enacted the Religious Freedom Restoration Act (RFRA), which, as it’s name suggests, was intended to restore legal doctrines that existed prior to Smith, and that were more protective of religious liberty than Justice Scalia’s rule. In 1997, the Supreme Court held that RFRA only applies to the federal government, so state laws that burden religious objectors are still governed by Smith.
Yet, while the pre-Smith regime was more protective of religion than the rule announced in Smith, that regime was nowhere near as slanted towards religious objectors as the world favored by many modern day religious conservatives. As James E. Ryan documented in a 1992 study, federal appeals courts heard 97 pre-Smith religious liberty cases between 1980 and 1990, and they rejected 85 of these cases. Thus while plaintiffs still had a meaningful chance of prevailing under this regime, most parties claiming that their religion exempts them from their duty to follow the law lost their case.
Among other things, the pre-Smith regime held that religious objectors cannot use their faith as a sword to limit the rights of third parties — and this is especially true for business owners. As the Supreme Court held in United States v. Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
Team Klein argues that Smith should be overruled. That, in and of itself, wouldn’t necessarily be a big deal. Written honestly, a Supreme Court decision overruling Smith would simply restore the rule announced in cases like Lee. And under Lee, the Kleins would still lose their case because religious business owners are not allowed to “superimpose” their own religious beliefs on their LGBTQ customers (or on Oregon civil rights law).
So why bother asking for Smith to be overruled if the Kleins will still lose their case under the pre-Smith regime?
The answer to that question is the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby. Hobby Lobby effectively rewrote RFRA to eliminate the rule preventing religious objectors from stomping on the rights of third parties.
In a 2016 opinion, moreover, Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito all signaled that they want to eliminate this rule for religious liberty lawsuits involve state laws as well. When you add Trump appointees Neil Gorsuch and Brett Kavanaugh to the mix, that’s five votes to say that conservative religious objections trump other people’s rights under state law.
So what happens now?
Massive disruption is likely if the Supreme Court imposes a Hobby Lobby-like regime on state laws. Hobby Lobby held that any time someone objects to a federal law on religious grounds, that law must survive a test known as “strict scrutiny” if the government wishes to enforce it against that religious objector.
Strict scrutiny is the toughest form of review that courts apply in constitutional cases. It’s the same standard the Supreme Court applies to a law that segregates school children by their race.
If this regime were extended to state laws, very basic law enforcement would become quite difficult, at least when the law is enforced against a religious objector. Literally any law, be it an anti-discrimination law, a minimum wage law, or even something as simple as a law requiring drivers to drive the speed limit — maybe the driver was speeding because they believed they had a religious obligation not to be late to church? — could become unenforceable against religious conservatives unless the law survived the strictest level of constitutional review.
But will a majority of the Supreme Court go that far? That much is unclear. In Masterpiece Cakeshop, Gorsuch wrote a concurring opinion suggesting that individuals should enjoy sweeping immunity from the law whenever they object to that law on religious grounds, but Gorsuch’s opinion was only joined by Alito. Notably, Chief Justice Roberts, who is now the closest thing the Supreme Court has to a swing vote, did not join Gorsuch’s opinion.
The Court’s frattiest member may also be reluctant to go the Full Gorsuch. As a lower court judge, Kavanaugh voted against the Obama administration in a case brought by religious conservatives who object to birth control, but his opinion took a somewhat more moderate approach than two of his even more conservative colleagues. That suggests that he is likely to side with the Kleins, but that he may not be willing to completely upend the balance of power between the law and religion in order to do so.
Nevertheless, Team Klein‘s aggressive legal posture suggests that, at the very least, they have a shot at overruling Smith and imposing Hobby Lobby on the entirety of American law. With Kavanaugh entrenched on the Court, they are very likely to win their case, and may, in addition, win a sweeping, transformative victory for the religious right.