303 Creative, Masterpiece Cakeshop, and the Fate of Free Exercise for Wedding Vendors

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Chayila Kleist:  Hello and welcome to this FedSoc Forum webinar call. Today, March 21, 2024, we’re delighted to host a discussion on “303 Creative, Masterpiece Cakeshop, and the Fate of Free Exercise for Wedding Vendors.” My name is Chayila Kleist, and I’m Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program as The Federalist Society takes no position on particular legal or public policy issues.

 

Now, in the interest of time I will keep my introduction of our guests today brief, but if you’d like to know more about any of our esteemed speakers, you can access their impressive full bios at fedsoc.org. Today, we are fortunate to have with us Professor Andrew Koppelman, who is the John Paul Stevens Professor of Law at Northwestern University School of Law as well as Professor (by courtesy) of Political Science and a Philosophy Department Affiliated Faculty at Northwestern University. He is a recipient of the Walder Award for Research Excellence from Northwestern, the Hart-Dworkin Award in legal philosophy form the Association of American Law Schools, and the Edward S. Corwin Prize from the American Political Science Association. His scholarship focuses on issues at the intersection of law and political philosophy. He’s written more than 100 scholarly articles and eight books, including most recently Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed, published in St. Martin’s Press. His column appears regularly at The Hill.

 

Also joining us today is Professor Douglas Laycock, who most recently served as the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law. Professor Laycock has taught and written about law, the law of religious liberty, as well as the law of remedies for more than four decades at schools including the University of Chicago, University of Texas, the University of Michigan, and the University of Virginia. Professor Laycock has also testified frequently before Congress and has argued many cases, including before the U.S. Supreme Court, where he served as lead counsel in six cases and has filed influential amicus briefs. He is also the author, co-author in the most recent addition, of the leading casebook Modern American Remedies, is a co-editor of a collection of essays on same sex marriage and religious liberty, and his many writings on religious liberty have been republished in a five volume collection.

 

Thirdly, joining us is Jonathan Scruggs, who serves as senior counsel and director of the Center for Conscience Initiatives with the Alliance Defending Freedom. In that role, Mr. Scruggs leads a team which seeks to defend the freedom of creative professionals to live out their faith in business and professional life without being subjected to government coercion, discrimination, or punishment. Since joining ADF in 2006, Mr. Scruggs has worked on and prevailed in a variety of cases that protect the right of people freely to express their faith in their school, in their business, and in the public square. He is a member of the bars of Arizona and Tennessee, and he’s also admitted to the United States Supreme Court as well as multiple federal district and appellate courts.

 

Finally, joining us today as our moderator for today’s conversation is Austin Rogers, who currently serves as Chief Counsel to the Senate Judiciary Committee, covering the civil portfolio of the Ranking Member. Prior to serving in that role, he served as the senior counsel of the Oversight Investigations for the Senate Judiciary Committee. Mr. Rogers also formerly worked at White & Case where he specialized in commercial and appellate litigation. He obtained dual graduate degrees in law and theology from Duke University, and after law school he clerked for Chief Judge Steven Merryday in the Middle District of Florida. His First Amendment scholarship has been published in the Duke Law Journal and the Marquette Law Review, and he’s a member of the District of Columbia Bar.

 

And with that, I will leave it there. One last note and then I’ll get off your screens. If you have any questions, please submit them via the question and answer feature found at the bottom of your Zoom screen so they’ll be accessible when we get to that portion of today’s webinar. With that, thank you all for joining us today. Mr. Rogers, the floor is yours.

 

Austin Rogers:  Thank you, Chayila, and thank you to The Federalist Society for hosting this exciting discussion topic. I’m going to turn things over to our panelists here momentarily, but before doing so I just wanted to provide a little bit of brief background on these cases and the legal issues that are going to be animating our discussion today. So in June of last year the Supreme Court handed down 303 Creative v. Elenis, and in that case the Court held that the First Amendment prohibited a state from forcing a website designer to create a message that disagreed with her views, with her religious beliefs. And noteworthy as that was a pure free speech case, so the free exercise question wasn’t addressed in that case. It was decided under the Court’s compelled speech doctrine, and even though Lorie Smith or 303 Creative had filed a petition for certiorari on the question of the free exercise clause, the Court declined to address that question.

 

If you rewind a little bit to 2018 in Masterpiece Cakeshop, you’ll recall that Jack Phillips there had declined to serve a same sex couple’s wedding, declined to create a cake for it, and they had sued Mr. Phillips under Colorado’s antidiscrimination law. And they were trying to compel him to create a cake and trying to ensure that he was complying with Colorado’s CADA law. And in that case the Court had the opportunity to address the substantive free exercise question, but again, it sort of punted on that question. It decided the case on very narrow grounds, and those grounds were that ostensibly Mr. Phillips had not received a fair hearing before the Colorado Civil Rights Commission. And so that was how the Court decided to dispose of that case.

 

So in this space we have 303 Creative. We have Masterpiece Cakeshop. We have the free exercise clause not really getting developed even though these are sort of at bottom religious questions, and adding to this confusion is Employment Division v. Smith. So there appears to be a sizable contingency of members of the Court who would overturn Smith. We see that, for example, in Justice Alito’s concurrence in Fulton and would like to repristinate some sort of standard like Sherbert v. Verner or Wisconsin v. Yoder or some sort of heightened scrutiny for free exercise claim.

 

So all that’s to say the law’s very much so in flux in this area. These cases are very important. They continue to percolate throughout the courts. The religious questions continue to feature in the parties’ briefings, so all that’s to say it’s going to be a very rich discussion today and very much so looking forward to it. With that, I’ll turn it over to our panelists, and we’ll begin with Mr. Scruggs. So Jonathan, the floor is yours.

 

Jonathan Scruggs:  Awesome. Thanks, Austin, and thanks both professors for joining. It should be fun. I’ve got five minutes, which gives me just enough time to say something that will get me in trouble probably. But hopefully I’ll kick the discussion off.

 

My general pitch is I think there’s a positive role for both the free speech clause and the free exercise clause in these type of cases. And as a background matter, I don’t think that should surprise us. Most of the original free speech and free exercise cases involve both interests, whether you look at Barnette, which is the flag case, Wooley, but even beyond that. A lot of the earliest literature distribution cases, you read them, and you don’t know if the Court is deciding free speech cases or free exercise cases or both. And even in this respect of ministerial exception could be framed as an expressive association interest in some respects. So it shouldn’t surprise us that both interests can come at play in these cases.

 

For the free speech case angle of it, I think that should play a role in the simple principle that a lot of people in this space, in the creative professional space, are not religious, and they have nonreligious objectives to speaking nonreligious messages. In 2020, a lesbian baker out of Detroit was asked to create a cake with the text “Homosexual acts are gravely evil, Catholic catechism 25:37” or what the specific catechism. The same type of thing happened in Florida. Someone was sued for declining to create that exact message under the public accommodation there for religious discrimination, and even in New York a progressive law group in 2018 was sued for natural origin discrimination for declining to print a pro-Israeli message in their law journal. It was for an advertisement.

 

So I think all these speakers should be protected. I don’t think anyone should be forced to speak a message that violates their core convictions like this, and obviously the free exercise wouldn’t cover them. They don’t have free exercise-type objections here. And so I think the intuition of 303 is exactly right.

 

And basically 303 just drew on precedent, well-established precedent on three lines to say hey, we can separate speech from conduct. That happens all the time in these cases. As someone who litigates in the free speech world often, I am not really moved by the argument that we can’t distinguish speech from conduct. We just do it all the time, and I think the text of the amendment requires us to do it.

 

The next distinction being hey, we can distinguish between an objection to speaking a message you disagree with versus to someone’s status, refusing to serve an entire group of people. That came directly from precedent, too, from the Hurley parade case from 1995, which is a unanimous decision. In that case, the Supreme Court said you can’t -- the Boston parade organizers can exclude someone from walking in the parade with a banner, but they can’t exclude homosexual people as such was the language that they used. And that’s just the same distinction that 303 drew.

 

And the last distinction there being we can distinguish between what are called direct versus incidental words. Again, that’s right on cue with Hurley. Hurley said that we don’t apply a line of cases such as the O’Brien case, which involved burning a draft card, because that only produced an incidental burden on speech. But Hurley said no, when you force a generally applicable law to alter someone’s expressive content, that triggers a much more immense burden. That triggers strict scrutiny. And of course that’s well founded in other cases, such as Cohen v. California, Holder v. Humanitarian Law Project. All these cases say even when you have a generally applicable law, if they’re applied in a way that’s triggered by expressive content, then you reach a higher level of scrutiny.

 

So those three distinctions, I think, can be made, have been made. 303 Creative was not the first case that ADF won in this score. We’ve won cases in Arizona and in the Eighth Circuit, and they’ve been applying these precedents ever since without too much trouble. So that’s the free speech angle.

 

Let’s go to the free exercise angle, which arguably I think is more complicated. There are a lot of -- the first thing to note I think on this is there are a lot of off ramps before the Supreme Court gets to the Smith question. And I’m sure we’re going to talk about some of those doctrines. But you’ve got secular comparator, hostility which is like Masterpiece, individualized assessment under Fulton. Masterpiece create an exception for ministers that was not referenced before. Even in the oral argument of Masterpiece, David Cole the ACLU’s attorney said well, it’d be different if we were forcing someone to physically participate in a wedding.

 

So that could be a potential other exception. The point being there are a lot of off ramps, and some of these exceptions have actually been on the books now for a little bit of time. And again, there hasn’t been enormous amount of problems.

 

But I think as Austin mentioned this, I think one trouble is the Supreme Court is going to have a lot of off ramps before it hits the Smith question. Now, that in some ways could be good and bad. My sense of it is Smith can only handle so many of these exceptions to illustrate that it’s not workable and it doesn’t work, and we can come to a better system. I think someday we’re going to look up and it’s going to be like the Lemon situation. Lemon’s been overruled we just found out today. So I think hopefully Smith will have the same fate.

 

Now, on that point I did want to make a quick pitch for returning to that RFRA type standard, and the pitch there would be look, the proof is in the pudding. In 2019, we won a case at the Arizona Supreme Court that I argued on behalf of a calligrapher that didn’t want to celebrate a same sex wedding. And we won not just under the free speech clause, but we won under the Arizona RFRA clause.

 

So Arizona’s been operating under this type of RFRA standard at least since then. There are roughly about 30 states with a state RFRA or a near RFRA interpretation of their free exercise clause. And courts have been able to manage through, and I think a large part of that is there’s enormous economic and cultural incentives to facilitate same sex weddings. I think also that the nature of the objections here are narrow and targeted.

 

This is not an objection that you see with these wedding business owners to decline to serve an entire class of people. It’s an objection to serving -- it’s an objection to promoting, celebrating, and participating in a particular event. So it’s pretty narrow. I know it’s shocking to people, but Jack Phillips is not the only cake designer in Colorado. There are many other alternatives there. So as I note proof being in the pudding, courts can handle and have really been operating under a world that I think is better, which is a RFRA type standard.

 

Now, that doesn’t mean that every wedding vendor wins or every business wins every claim they bring, absolutely not. As we argued at the court in Arizona, I think the strict scrutiny standard is flexible enough to parch the wheat from the chaff. And so a lot of it turns on the facts, but you can analyze different things like the nature of the objection, like I said. Is it to serve an entire group of people? Is it to a particular event? Is it focused on weddings? What about the nature of the product? Is it highly customized, or is it an off the shelf something that’s distributed broadly? Is it a large business? There’s a substantial difference between Amazon declining to sell a product to a protected class and Jack Phillips who serves people of all walks of life and just can’t promote or participate in this one event he disagrees with. And again, the world hasn’t ended in light of these things.

 

So I think that -- and I note also that the Supreme Court and prior courts have drawn lines like this before. The Supreme Court under a strict scrutiny analysis like in Lee said hey, we can’t give an exception to not pay your taxes because there’s enormous incentives for everyone to jump on and do that. That obviously is not the case here. As anyone who’s followed these cases, it takes an enormous amount of emotional strain, financial input to put your hand up and say hey, I disagree with these events, but I’m otherwise going to serve the protected class.

 

So last thing I’d note, and my final pitch on this, is unfortunately we’ve been seeing a trend of using these laws as swords and not shields. I mentioned the Detroit baker and those situations here, but even the most recent and probably most egregious example I think is Jack Phillips. He’s been in litigation for 12 years. The most recent situation is an attorney the day after his case was accepted for cert at the U.S. Supreme Court called Jack Phillips up and said will you make me a cake to celebrate -- a blue and pink cake to celebrate my gender transition. The attorney had already asked for a cake depicting Satan smoking marijuana, and at the trial, which I was a part of—we had to go through a trial at the district court—the attorney said look, if this case gets dismissed, I’m just going to turn around and sue you again, Jack, because why? I want to correct the errors of your thinking.

 

And so when you see that these laws are being used like this, they’ve expanded greatly in their scope, and they’re being used as swords to punish people for certain beliefs, for certain ideas. They’re operating much more like European style hate speech laws than I think what the original purpose of these laws were was to ensure equal access to goods and services. So I think a more robust understanding of the free speech and free exercise clause is warranted to meet these answers and these changes. Thanks.

 

Austin Rogers:  Thank you, Jonathan, for your comments. We’re going to hand it over now to Professor Koppelman.

 

Prof. Andrew Koppelman:  So there is quite a lot here. I think I’m going to start with talking about the religious liberty claims, which the Court has in case after case been avoiding. And I offer some speculation as to why the Court is avoiding the question of why not do Smith balancing here. So there are two problems with Smith balancing.

 

One is the danger of opening the floodgates to so many exemptions that the law will be defeated, and the exceptions will sometimes be insincere and opportunistic. And the problem is that once you have granted an exemption, the cost of claiming it is low for the next claimant and the next and the next because you already established a religious exemption. Sincerity is almost impossible to determine. And so that’s the basis for decisions like the Lee case which Jonathan talked about, which says you can’t claim a religious exemption to paying taxes.

 

Doug Laycock pointed out a long time ago that courts should be hesitant to extend exemptions to claims with secular value because the government should not encourage or discourage religion, and when you extend exemptions to claims with secular value, that’s what you’ve done. And of course if you are the defendant in a discrimination claim, having your motion to dismiss granted is always got secular value. So it’s one reason why I think the courts are right to worry about opening the floodgates.

 

I think Jonathan is right that there are costs to publicly identifying yourself as wanting to discriminate against gay people, but anybody who resists a discrimination claim, if you get sued, you will either admit liability or you’ll resist the claim. And there is a powerful incentive to resist the claim because money is involved, so I’m more worried about the floodgates than he is. And then there’s a second problem with strict scrutiny.

 

If strict scrutiny is applied, then the Court has got to decide whether there is a compelling interest. And so then the Court has got to decide whether the interest in prohibiting discrimination on the basis of sexual orientation is or is not compelling, and the Court is in trouble either way. Once it says that it is compelling given the floodgates problem, the religious claimant is going to lose.

 

But I think that if the Court says well, discrimination on the basis of sexual orientation isn’t as bad as race discrimination, that has no basis in law. The Court is just taking a position on the culture wars. The Court is essentially saying we’re Republicans, and so we decide this the way that the Republican base thinks. It’s just not law. And that’s obviously going to be the case.

 

So that is, I think, why the Court has been inclined to move away from religious freedom claims to speech claims and why all of these cases get disposed of as free speech claims and not as religious freedom claims. And the fundamental problem with trying to look at the discrimination, the conduct of discrimination as sending a message, it is true that when I engage in nondiscrimination when I serve a gay couple, that is conventionally understood to convey a message. But Justice Scalia pointed out a long time ago—I’ll quote him here—“Virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose, if only expressive of the fact that the actor disagrees with the prohibition.”

 

So that brings us to 303 Creative, and given my limited time, I think I’m going to end by talking about that. So the owner of a graphic design firm was offering custom designed wedding websites. We don’t really know just to what degree of customization and creativity was involved in creating these websites because there was no trial and no finding of fact. The Court’s decision rested entirely on the stipulations, and on the basis of the stipulations the Court decided that this is a case involving free speech. The parties have stipulated that Ms. Smith ceased to engage in expressive activity.

 

The problem is that -- so if there are stipulations -- there were four stipulated facts: the website will contain images, words, symbols, and other modes of expression; each website will be original and customized; the websites will communicate ideas; and they will involve Smith’s own speech. And on that basis the Court said, well, so that means that this is pure speech. But these stipulations just show that the website design satisfies the Spence test, which asks whether there’s an intent to convey a particularized message and the message will be understood by those who view it.

 

But the Spence test just triggers O’Brien, which is a very deferential test. It’s the test that Scalia was relying on in the passage that I just quoted. But if the four facts that were stipulated are enough to get you out of the O’Brien test and into strict scrutiny, that’s going to cover an awful lot more than just discrimination against same sex couples.

 

So let’s suppose you’re a lawyer, and you draft an incompetent legal opinion letter, something that would trigger liability for medical malpractice. Or let’s suppose -- we had a lot of this during COVID. There were doctors who prescribed medicine that was dangerous, who engaged in malpractice. But they did it with speech.

 

In each one of these cases, all of Gorsuch’s factors are satisfied. They engaged in speech. It was original and customized. It communicated ideas. It involved the doctor or lawyer’s own speech. It cannot possibly be the case that the Court now means to get rid of these torts of attorney or medical malpractice or failure or a warn. There are disclosure requirements all over the place in the law.

 

So after 303 Creative, there seems to be some new exception to O’Brien, but it’s dimensions are entirely mysterious. Now, Jonathan said that courts have been able to manage. I’m not sure what that means. What we have had in fact is that you can offer basically unintelligible standards to the lower federal courts, and the lower federal courts will exercise their discretion.

 

And that’s essentially what’s happened here. You’ve got this essentially meaningless and unintelligible standard that comes from the Supreme Court, and the lower courts do the best they can. And it makes Jonathan happy because a lot of his clients win, but I remain puzzled as to what the rule of law is. And I’ve looked at some of these cases, and it’s very hard to tell what these cases mean other than that district courts are authorized to rule in favor of religious claimants anytime the courts feel like doing that.

 

Austin Rogers:  Thank you, Professor Koppelman. With that, we can turn it over to Professor Laycock, and then I will offer some brief questions and turn it over to the audience.

 

Prof. Andrew Koppelman:  Doug, you’re muted.

 

Prof. Douglas Laycock: I’m going to try to briefly make three points. First and most important, I think, I have long thought, we can protect both sides in these cases. We can ensure that same sex couples can marry and can have as fancy a wedding and reception as they want and can afford without requiring conscientious objectors to provide the goods and services for that celebration.

 

There’s dignitary harm on both sides in these cases. The same sex couple feels insulted and dismissed and condemned. I understand that. That harm is real. There’s also dignitary harm on the religious side, and on the religious side the harm is permanent.

 

The religious wedding vendor must either permanently surrender his conscience, agree to violate it any time a same sex couple asks, or he must permanently surrender his occupation. In any kind of balancing, the harm is actually greater on the religious side than it is on the same sex couple side. And the harm to the religious vendor is certainly not compellingly outweighed by the harm on the couple’s side. And this is not about how important we think gay rights are; it’s about looking at the actual impact on the couple on one side and on the wedding vendor on the other.

 

Second, the free speech rationale seems to me a lot broader than the free exercise rationale in an important way. The speech rationale is not confined to conscientious objectors. It's not confined to secular objectors any more than to religious conscientious objectors. It protects plain old fashion bigots if they convince the Court that their product consists or includes elements of speech. You don’t have to have a deeply seated objection. You can just be hostile. And the free speech right is a right to say I say no. I’m not going to say what you want me to say.

 

Identifying sincere conscientious objectors is not always easy, although I think in these cases that’s been pretty clear. Identifying the limits as what counts as speech is not easy either, as Andy said. 303 Creative seems to me like a clear case. Designing a website is speech, but even there Andy always has his doubts. The three dissenters didn’t think it was speech.

 

It was much harder in Masterpiece Cakeshop. Is icing a cake speech, decorating a cake speech? And if it is, how many other things might be speech? And Kristen Waggoner who represented the baker had no good answers whatever to those questions at oral argument. So finding the limits of speech is not easy. It may in fact be more difficult than assessing sincerity of conscientious objection.

 

And then third, I think Masterpiece Cakeshop has been systematically misdescribed. The free exercise rationale is not nearly so narrow as people say. There were two free exercise theories in the opinion in Masterpiece. One was hostile comments at the hearing before the Colorado Civil Rights Commission. State officials have now been warned to keep their hostile opinions to themselves. They won’t all get the word, but most of them will. And there won’t often be that kind of open hostility on the record.

 

But second, the Court said that Colorado had provided an exemption for the secular baker who objected to -- refused to make a cake with scriptural quotations that were antigay. He was held not to have violated the statute. But the religious baker had been held to violate the statute when he refused to make a cake that he disagreed with. I think if the plaintiffs in these cases used testers, they will likely get that reaction nearly everywhere in blue states. Enforcement authorities do not want to violate the conscience of the vendors they agree with. They only want to violate the conscience of the vendors they disagree with.

 

Now, people who don’t like the decision, including dissenters, including Colorado, say that’s not what was going on. They weren’t just engaged in discrimination between religious and secular bakers or between pro-gay and antigay bakers. They concoct other ways to rationalize the difference in treatment. I don’t think those rationalizations work for the reasons Justice Gorsuch explained in his opinion that Tom Berg and I elaborated in a brief for the Christian Legal Society and six other Christian and Jewish organizations.

 

But it doesn’t really matter who has the better of that argument because for the majority of the Court, they said those rationalizations didn’t work. Protecting the secular baker who objected to an antigay cake and refusing to protect the religious baker who objected to a same sex marriage cake was a form of discrimination and made the law less than generally applicable. I think most of these also turn out to be less than generally applicable if the plaintiffs would simply take the time to set up the facts.

 

And if the Court ever get to a point where it says we can’t find this law less than generally applicable, I think pretty clearly the current Court would then just decide to overrule Smith. They’ve got lots of ways to decide these cases without having to overrule Smith. It may be a long time before they officially do it, but if they get pushed into the corner with a claim they find attractive and no way to rule for that claim without overruling Smith, I think probably the five votes are there, maybe six.

 

Just a couple other points that came up from Jonathan and Andy, we now are up to as soon as a couple bills on governors’ desks are signed, we’re up to 38 states with a state RFRA or a similar interpretation of the state constitution. We may get 39 in Georgia. That bill still looks a little iffy.

 

I don’t think in these cases there will ever be so many conscientious objectors that the purpose of the discrimination law is defeated. If that happens, my view has always been at that point where that becomes a serious threat the state’s center becomes compelling. Everyone’s entitled to participate in the marketplace. But there are enormous costs to bringing one of these claims. People who bring these claims are tied up in litigation for years. They’re threatened with serious fines and awards of attorneys’ fees. They get death threats. They get defamatory reviews on Yelp. They get boycotts. You don’t bring one of these claims unless you feel very strongly about it.

 

And so there’s not a secular value in bringing one of these claims. There’s not a secular incentive to falsely claim conscientious objection. We may get more claims if the law is clearly established that such a claim can succeed, but we’re not going to get many more because the secular costs of bringing such a claim are so enormous.

 

I think and have long thought at the heart of these kinds of conflicts is the insistence of activists on both sides that they are entitled, their side is entitled to a total win and to bear no cost whatever. If ADF had its druthers, there would be no same sex marriage, and there might be no gay rights laws of any kind. And certainly plenty of folks on the conservative religious end of the spectrum believe that, whatever the official position at ADF is.

 

And if the Human Rights Campaign and other gay rights organizations had their druthers, there would be no exemptions whatever except possibly for the clergy person refusing to do the wedding, and I’m not confident that would last over the long run. But if each side is willing to give just a little bit, we can have same sex weddings, and we can protect conscientious objectors. We tell our children this country is about liberty and justice for all, and if we mean it, we will try to protect both sides in these cases.

 

 

Austin Rogers:  Thank you, Professor Laycock. Thank you, all. I wanted to offer you guys a brief opportunity to respond to any comment that was made, and then I have a slate of questions I would like to ask myself. So open ended, opening the floor up to you gentlemen if you want to make any remarks on what was said.

 

Prof. Andrew Koppelman:  I would say two things in response to Doug. First of all, I’m entirely in agreement with him about the need for an accommodation. I’ve got a book arguing that the conflict is unnecessary. And we really should be able to come to state of affairs where everyone is okay. We disagree about the significance of the William Jack case where William Jack was refused cake that had an antigay message.

 

Colorado law is that if you’re willing to bake a cake -- you don’t have to have anything in your inventory. Hat stores are not required to sell yamakas. But if you sell a product, you have to be willing to sell the exact same product to gay people and straight people. The cake that was Jack was asking for was something that the baker wouldn’t sell to anybody, where Phillips was perfectly happy to sell a wedding cake, just not to a same sex couple.

 

So the discrimination here is within the coverage of the statute. If you say, well, here’s this statute, and it doesn’t protect religious people, well, no statutes prohibit all of conduct. And so any statute is going to draw a line where some religious people aren’t included within the protection of the statute. That’s just the nature of law.

 

Prof. Douglas Laycock:  Well, if William Jack’s baker gets to say I will make a cake with a message I approve of and not with this message I disapprove of, then I don’t see why Jack Phillips can’t say I will make a cake with a bride and groom on top but not a cake with two grooms on top. The discussion didn’t get that far, but it was clear where the discussion was going. I think he didn’t imagine they were going to want a cake with no celebratory message whatever.

 

And in any event, that’s not what the Colorado court said, and what they did say was deeply inconsistent. They said about four things about Jack Phillips that they said the opposite of for William Jack. The discrimination on the record there seems pretty clear to me.

 

Jonathan Scruggs:  Well, I’ll just add that I think Lorie Smith is the best example here. Last time I checked, a website with text and graphics and images celebrating a same sex marriage is a different website than one celebrating a marriage between a man and woman. They convey different messages. They promote different things. Yet, Colorado said that was status discrimination.

 

And I think that goes back to my point. I will defend the -- I think I agree with a lot of stuff that has been said, disagree with some things of course. But I think we can draw lines both in the free speech world and in the free exercise world. On the free speech world, to mention that example before regarding the lesbian baker -- or we can come up with many examples. There are 19 states that put political belief as a protected class in their public accommodation -- or not 19 states, sorry, 19 jurisdictions.

 

But the point being is do we want to force the Republican speech writer to write the speech for the Democrat? Is that the same speech? It’s the same product. I think you’re kind of playing with the level of generalities if you go up and go down by saying, oh, these are the same things. I think they convey for the purpose of the free speech clause they convey much different messages, so it’s clear that the objection is to the message and not to the status.

 

And so the other thing I’d note is I’m not sure I totally -- I think maybe there’s some conflict between what we think -- how the incentives work here. Professor Koppelman, you mentioned well, someone who -- there’s always an incentive to defeat a lawsuit, for example. And so that will kind of wreck the incentive structure and open the floodgates. But I think that might go a bit too far. In theory, that means we shouldn’t protect the minister. The Masterpiece Cakeshop shouldn’t protect the religious minister in a free exercise exemption because that would encourage people to go and do the online clergy form or something like that that would incentives them to do those things because they’re being sued. And I just don’t think that kind of swallows the whole point.

 

I think if you look at a broader context, both the larger legal, political context, that the incentives are not likely. But they’re the reverse. Again, the objections here are targeted and narrow, and impetus, people do face costs when they stand up. And these are costs because of their religious beliefs they’re willing to bear because they’re so important to them. So those are just some comments from me.

 

Prof. Andrew Koppelman:  One place where there’s just I think we’ve got an intractable problem here is that different people have different intuitions about the floodgates and the incentives. And I think that that shapes the way in which people come at this. I think there is an issue about what the rule of law is that you lay down, and if you lay down a rule of law that says that free speech is implicated any time the conduct is going to be construed by third parties to convey a message, then everything that human beings do conveys a message.

 

When Ollie’s Barbecue serves integrated dining, they say we’re sending a message of integrated dining, but we believe in racial segregation. Therefore, we have a free speech right to exclude Black customers. This is what Justice Scalia was worried about when he said there’s got to be room for regulation of conduct even if the underlying conduct conveys a message.

 

Now, maybe you can draw a line. All I’m saying is that however one proposes to draw the line you can’t draw the line in the way that the Court did it in 303 Creative because the logic of the Court’s position is that there can’t anymore be medical malpractice or attorney malpractice because both of those involve all of the elements that Justice Gorsuch says contains pure speech. We can draw the line in some other way. Just can’t do it that way.

 

 

Austin Rogers:  Well, that’s helpful, guys. A few of you mentioned sincerity being impossible to determine. You had mentioned that, Professor Koppelman. Professor Laycock, you mentioned it’s not easy to determine.

 

I’m wondering how Wisconsin v. Yoder sort of plays in this conversation. I think a lot of people view that case as aren’t the Amish people nice, and here’s who they are. And we’re going to grant an exception. But in that case, they have a deep inquiry into what the Amish practices were. They allowed for expert discovery, and there was sort of this question of what is the actual religious belief of these people and are they entitled to an exemption. So is that something that’s going to unduly burden free exercise? Is that something courts should be doing? What is your take on this sort of thing?

 

Prof. Douglas Laycock:  Well, I think in many of these cases, sincerity is clear. Sincerity is easiest to assess when the particular claim is embedded in a larger religious practice as it certainly was for the Amish and as it was for Jack Phillips. It is easier to assess if the claim is costly in personal or secular terms than if it is rewarding or beneficial in secular terms. The difficult claims are the sort of one off, the idiosyncratic claim where a guy’s not imbedded in the larger religious teaching and doesn’t appear to be practicing a religion in any understandable sense. And his religious commitments don’t seem any broader than the one law he objects to. I think in fact courts should be less afraid of sincerity than they are, and they should be willing to say no, you just haven’t proven sincerity. And it’s an element of your claim.

 

I don’t know what Jonathan’s experience is, but I know experienced practitioners who say the Court never rules against me on sincerity. But if they get any whiff of insincerity, they rule against me. They will find another way. They will say the interest is compelling. They will say the religious practice is not a burden. They’ll say something, but they will not protect a claim that they think is insincere.

 

Jonathan Scruggs:  I think there’s a lot of truth to that. I think courts can analyze sincerity. I think one of the issues is a lot of it turns on the ability of the defendant to actually ask the questions and analyze the issue. And as you note, it’s not like these cases don’t go through discovery. I won a case, a photographer in Louisville, who didn’t want to photograph same sex wedding. We went through discovery. They got asked the questions. Our clients had to school some of the officials up on the scope of what her theology meant, and I think that’s fine. It’s fine to probe the sincerity of those issues, and I think it can be done. It puts a limit as we note on a RFRA type scheme. That’s one limit on it that you can probe for sincerity.

 

Austin Rogers:  That’s helpful. I think Professor Koppelman had also mentioned that exemptions to claims secular values shouldn’t be done. It was one of the professors. In Justice Kennedy’s opinion in Masterpiece Cakeshop, he sort of intimated that philosophical objections could be accorded free exercise protection. That’s partly why I asked the question because I think some of this conversation could benefit from clarity about what religion even is, what constitutes religion for the purposes of the First Amendment and in light of that whether that covers philosophical objections. We have a case where a Church of Satan or something like that has claimed some sort of right to abortion, so I’m just wondering the extent to which this conversation should hinge on what religion even is.

 

Jonathan Scruggs:  Who wants to answer that question?

 

Prof. Andrew Koppelman:  Well, my sense is that it doesn’t come up very much. All of the claimants in the cases that we’ve actually seen are conservative Christians who think that marriage is inherently heterosexual and feel that they would have a problem of complicity if they participated in that same sex wedding. And yeah, I’m with Doug and I think with Jonathan on this that I think that those folks ought to be accommodated. I worry about whether it can be done judicially, but a number of us, Doug and I in different ways, have said there ought to be a legislative fix here.

 

There’s a tendency as just a consequence of our legal training the way that lawyers make arguments is that we try to come up with some abstract universal principle that is valid between now and the heat death of the universe that just happens incidentally to entail that my client wins. And another way of dealing with conflict is seeing whether you can work something out where everybody’s okay. That’s the way that we should be thinking about this. There are urgent interests on both sides. If it’s possible to come up with a way of accommodating them, we ought to do that.

 

Prof. Douglas Laycock:  There’ve been a lot of efforts to do that, and excepting Utah, they’ve all been vetoed by the activists on one end or the other. The people most engaged in these issues are absolutely resistant to compromise, and that’s a serious problem.

 

Prof. Andrew Koppelman:  That’s why you and I are here to try to change public opinion on that question. If enough people get sick of the activists—and there are a number of areas in this space where people are getting sick of the activists—that opens up political possibilities.

 

Jonathan Scruggs:  Well, I’ll just note that -- well, go ahead, Professor Laycock. I don’t want to interrupt your vibe here.

 

Prof. Douglas Laycock:  I was going to say on the question about certain kinds at least of philosophical objections, given the evolution of religious belief and opinion in this country, religion has to be understood to include all the answers to the great religious questions, negative as well as positive and to protect ethical commitments that are not based in theism but are held with equal force and with equal sense of this is bigger than me; I don’t have any control over this. That’s not an easy line to draw, but as Andy says, it doesn’t come up very often. It came up with respect to killing in military service. We legislatively expect it would for abortion and assistance in dying. I think those people have to be protected. It was a tough sell to the judges, but I think that’s how we ought to understand religion these days.

 

Jonathan Scruggs:  I’m not going to -- there’s obviously a lot of debate about -- you can go to the case law, and they lay out here’s like a 15 factor test about what is religion or what is not. It gets complicated; right? I’ll just pitch that a lot of these philosophical objections do get routed to the free speech clause, obviously not all because they’d have to be related to speech.

 

I just don’t understand the line that we can’t distinguish between speech and conduct or it’s hard because that would just abolish the entire free speech clause. And I think it’d come to a shock in the NetChoice cases every single large corporation, professor almost is advocating well this is obviously speech. In this case, in 303, it’s much easier a situation, so I think we’d have to start reversing a lot of precedent. We wouldn’t be able to protect, as I mentioned, the lesbian baker, the progressive group that doesn’t want to publish something along those lines if we can’t draw some lines. And I think the Court actually drew the line itself.

 

Now, it didn’t identify every offramp. There are a lot of free speech offramps: speech integral to criminal conduct, things along those lines. But in this space, I think it did the exactly right job getting those offramps that I mentioned, and I think something similar can be done in the free exercise clause, that there are offramps. And we can draw these lines. Courts can draw these lines.

 

Austin Rogers:  So in drawing those sorts of lines, do you think it’s harder to draw the lines for the free speech clause or the free exercise clause? And I’m not trying to suggest an answer, but it just seems to me like I look at oral arguments in Masterpiece Cakeshop and 303 Creative. And they’re asking questions about whether a hairstylist or whether architecture or whatever constitutes speech, whereas with religion I think sometimes it may be a little bit easier to sort of draw those lines. That can be off, but do you have a sense of which presents more intractable line drawing issues?

 

Jonathan Scruggs:  Well, I’ll take this one. I think it’s about equal. I think we can both come up with the paradigm examples that are obvious, and we can on both scores come up with some much harder ones. But that doesn’t mean we throw out the line at all. And again, as someone who litigates a lot in the free speech space, I’m just not moved by the argument. I understand in our brief in 303 highlighted for the most part these people are not speakers: hairstylists, hotels, limousine drivers, yada, yada, yada.

 

Now, there’s some closer calls. I don’t deny that, but same thing with black arm bands and flags. And courts have said that’s protected speech, and they’ve said social dancing is not. So I think lines are possible. You have to draw the line. The text says speech, so you have to distinguish it from conduct, same thing with religion.

 

Prof. Andrew Koppelman:  One problem with the distinction is that in a number of these case what is doing the work is the state’s motivation. So flag burning, the Court struck down laws against flag desecration because the state’s purpose was suppressing a message it didn’t like. But I think that every major city has a law against starting a fire in the middle of the street.

 

So if I burn a flag in the middle of the street and I am charged with arson, with starting a fire in the middle of the street, I don’t have a free speech claim. I will not prevail on a free speech claim, even though I was trying to convey a message because the government’s interest is unrelated to the suppression of conduct. And that’s generally true of the application of antidiscrimination laws.

 

So then we get to this other aspect of free speech, which is whether there is some generation of messages that is so close to actually suppressing words and the state controlling the content of words that it ought to be considered to be part of free speech. And so the difficulty in 303 Creative is if all that is going on in 303 Creative is that she is operating a plug and play website where all she does is plug in the names and is exercising no creativity at all, then that just doesn’t seem to be personal enough to trigger the free speech clause.

 

And then we get into what artistic production is creative in that way, in the same way that there is a persuasive claim, an interesting claim being raised by wedding photographers that is not raised by the passport photographer at Walgreens who is just, again, doing plug and play. Now, people have proposed standards for drawing that line. Eugene Volokh and Dale Carpenter have proposed, I think, the most attractive one, but nothing like that is going on in 303 Creative. The standard laid down in 303 Creative is so crude that the Court can’t possibly mean it, and we’re no better off.

 

Jonathan Scruggs:  Well, I’ll have to disagree with that. I actually agree with you, and in fact, if you look at the stipulated facts, it’s clear that she doesn’t offer plug and play, that everything she offers is creative, individual. Every single website celebrates the message, so I think that might be a disconnect from what we understand the facts are as stipulated.

 

Prof. Andrew Koppelman:  It’s not the facts that Gorsuch relies on in his opinion. It’s just enough that she’s -- the website communicates ideas and involves images, words, symbols, and other modes of expression. That’s true of plug and play.

 

Jonathan Scruggs:  Well, I would go back -- he obviously emphasized the creative, original, artistic nature of what’s going on that she exercises absolute editorial control over all the websites she operates. And that’s of course what we argued in our brief. We drew those lines, those same lines in our brief. And I think the Court adopted them, and we argue those in all our cases.

 

Prof. Douglas Laycock:  I would add just one thought. The difference between day and night presents difficult line drawing problems at dusk and at dawn. There are always line drawing problems, and we should not be overly intimidated by them.

 

Austin Rogers:  That’s fair. I think I’m perfectly comfortable with drawing lines. I do have some concern that the free speech question is front and center in all the parties’ briefing, and I certainly think it plays a role in this. But it creates this sort of positive feedback loop where people who are suing under the free speech clause are getting positive results, and so they continue to pursue that line of inquiry. And the free exercise clause is doctrinally a little bit underdeveloped. And of course we all want clarity on what the status of Smith is, etc. So I think that’s why I more or less was asking that question.

 

We don’t have a ton of time here. I do want to get to a couple of the questions. There are several, so I’ll just identify a couple of them. So I’ll just pitch this to all of you gentlemen. One question was aren’t the costs and harms to the same sex couple much less when they are referred to a baker or a website, think Fulton, who doesn’t have an objection? What about a referral requirement? Is that part of the win-win that Professor Laycock discusses? So I guess should there be some sort of referral requirement was more or less the question.

 

Prof. Douglas Laycock:  I would generally be okay with a referral requirement, although some of these objectors would resist even that. There are other ways to go about providing that information. Either a gay rights group or for that matter the nondiscrimination authority could post on the web a list of gay friendly vendors, but I’m certainly comfortable with the requirement that the turn down be handled civilly, that it not include a bunch of antigay -- in fact, I think most of the facts in these cases have been consistent with that.

 

Austin Rogers:  That’s helpful. Another anonymous attendee asked Yoder involved a free exercise right plus a parenting right, a hybrid of sorts. So in light of Smith’s hybrid rights, Justice Scalia sort of talks about there being hybrid rights involved, and that’s why some claims are accorded heightened scrutiny. Do hybrid rights have any sort of role in this? Is that just entirely academic exercise, or what do you guys think?

 

Prof. Andrew Koppelman:  Scalia was trying to reconcile his decision that there is no free exercise right to religious accommodation with earlier cases that had granted some accommodation, and he came up with this idea of hybrid rights, that if the religious claim is tied to another constitutional claim, then you win, as in Yoder. But Yoder itself made clear that the parents’ objection by itself was not sufficient to make out a constitutional claim, so it was losing parental rights.

 

Then you couple that with what Smith says is a losing religious claim, and you end up with a logic that essentially says zero plus zero equals one. It can’t possibly be right, and lower courts have not been able to make a whole lot of sense out of the hybrid rights claim. And if I were a lower court judge, I would object to it because it is, to borrow a phrase from Robert Bork, an inkblot. One can’t make any sense out of it.

 

Prof. Douglas Laycock:  If it’s enough that another right be implicated, then everything is a hybrid claim. But if the other right has to be a winner, then free exercise adds nothing. I think Souter points that out in his concurrence in Lukumi. It’s a nonsense concept, and it’s only been successful in a couple of speech religion cases and one parental rights case in the Supreme Court of Michigan.

 

Austin Rogers:  That’s helpful. Thanks, gentlemen. I see Chayila on the screen, so I think I’m getting played off the stage.

 

Chayila Kleist:  I’m so sorry to cut y’all off. I know you can --

 

Austin Rogers:  No, it’s great.

 

Chayila Kleist:  -- go on for another hour, but we will need to wrap there as we’ve hit the top of the hour. Thank you all so much for joining us today. We really appreciate you lending us your time and expertise. Thank you also to our audience for joining and participating. We welcome listener feedback at [email protected], and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.