Thoughts on Religious Freedom and Compelled Expressive Conduct

It’s the big topic of discussion, today, because Trump is expected to sign an executive order, the stated purpose of which is to defend religious liberty. This order, however, does just about nothing. The EO, in the words of David French, is “[t]otal weaksauce.”

But suppose the EO were stronger in its attempts to defend religious liberty. Suppose Trump tried to provide more protections for business owners who have religious objections to participating in gay wedding ceremonies. The internet would be ablaze with people freaking out about civil rights violations and what-not. Actually, the internet has already blown up with hysterical hot-takes. Last night, the hashtag #LicenseToDiscriminate was trending on Twitter.

In response to the hysteria, I’m going to lay out my thoughts on two topics relating to religious freedom. First, I want to say what I think the Constitution requires with regard to the right (or lack thereof) to deny service to certain groups on the basis of religious belief. Second, I want to say what policies I think are best, independently of constitutional considerations.

Some significant constitutional questions have been brought before the courts on this topic. The Supreme Court is currently sitting on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In this case, the owner of the bakery in question refused to bake a cake for a gay couple on the grounds that doing so would violate his religious beliefs. Under Colorado law, the baker was prohibited from denying service to the couple. The question before the Court is whether Colorado’s laws requiring this baker to bake cakes for gay weddings violates the free speech or free exercise clauses of the First Amendment.

I do not think such a law violates the free exercise clause. Neutral laws of general applicability that also prohibit certain kinds of religious practice are consistent with the free exercise clause, according to Employment Division v. Smith. Indeed, if states were required to carve out religious exemptions for all of their laws, we would expect to see a significant number of people claiming religious exemptions even when they’re not actually religious. Either laws would be effectively nullified, or the courts would be put in the awkward position of having to evaluate the sincerity of religious beliefs, something it is not competent to do.

I think you can make a much stronger case that the Colorado law violates the free speech rights of the baker, however. Expressive conduct is under the scope of “speech” in the First Amendment. Given the creative nature of designing, baking, and decorating a custom cake, it seems reasonable to say that the baker’s cake is, in some sense, speech. According to West Virginia Board of Education v. Barnette, the state is not permitted to compel expressive conduct.

To be clear, the gay couple in question requested the baker to create and design a cake for them. They did not merely request to purchase a generic cake. If they were just buying a cake, the free speech rights of the baker would not be implicated, and he would not have the right to refuse service. However, because they requested a custom cake, they were requesting him to engage in expressive conduct, which he has an inviolable right to refuse to engage in, even if his refusal is not grounded in a sincerely held religious belief.

So it appears, then, that the free speech clause of the First Amendment protects the right of some businesses to deny some services for any reason whatsoever, but they can deny only those services which are expressive in nature. I think it’s also worth pointing out here that the Privileges or Immunities Clause of the Fourteenth Amendment protects all classes of citizens from discrimination in places of public accommodation. In other words, there are some businesses which cannot discriminate at all, such as restaurants and hotels. A state cannot give such a business the right to discriminate on any grounds whatsoever.

It seems then, that the state’s power to regulate the ability of businesses to discriminate only extends over businesses which are not places of public accommodations when the services offered are not expressive in nature. Thus, my discussion of public policy will focus on this particular class of services.

For example, let’s return to the baker. Suppose a gay couple comes in and asks to buy some pre-made cupcakes for their fifth anniversary. I am perfectly comfortable with state laws that would require the baker to sell the couple cupcakes. I do not think such laws are required by the Constitution, but I do think that, as a matter of public policy, they make sense. The identity or class-membership of the buyer should not be relevant to the seller. State laws should reflect that.

There are some examples I can think of, though, that make the situation a bit tricky. Suppose you own a pet store and a satanist comes in to buy an animal to sacrifice to Baphomet. Can I refuse to sell him the animal, knowing that he plans to sacrifice it? I want to say yes, even though I do not think that selling the animal is itself expressive. There is no sense imputing an expressive component to general commercial activity. But if you apply the rule that seems to apply in this example, couldn’t our baker refuse to sell cupcakes to the gay couple if he didn’t want his cupcakes to be used in a celebration of a gay marriage?

It would probably be best for states to have laws requiring people to serve customers irrespective of their identity or group-membership with some exceptions relating to subsequent use of what is purchased. Perhaps the pet store owner could refuse to transact with the satanist if he had good reason to believe that the satanist planned to violate animal cruelty laws, but the baker’s objection to the celebration of gay marriage would not be sufficient to merit an exception. Perhaps. Anyhow, I’m glad that the Constitution leaves such cases up to the states.

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