This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law. Continue Reading...