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Masterpiece Cakeshop and the Constitutionalization of “Both Sides”-ism


Noah Zatz (@NoahZatz) is Professor of Law at UCLA School of Law.

At first glance, Masterpiece Cakeshop v. Colorado Civil Rights Commission appears not to be among the more important of this past term’s disastrous Supreme Court opinions. It was issued much earlier than the June blockbusters and has widely been treated as a bullet dodged, allowing a Christian conservative baker to refuse to make a cake for a same-sex wedding but not setting much of a precedent. But something more insidious may be seen at work if one revisits Masterpiece Cakeshop (allowing anti-gay discrimination if it is religiously motivated) in light of not only the travel ban opinion (allowing anti-Muslim discrimination if it is adorned with paperwork) but also the recent “civility” eruption.

At first, Justice Kennedy’s Masterpiece Cakeshop seemed like a narrow decision limited to peculiar facts of the case. It found an essentially procedural error in how the Colorado Civil Rights Commission had discussed religion as it reached its conclusion that the baker had committed illegal sexual orientation discrimination; such an error could easily be fixed the next time round. This allowed the baker to win without deciding the core issue of whether religious commitments to anti-gay discrimination must be accommodated even when discrimination otherwise is prohibited. Kennedy the moderate wasn’t ready to go that far.

But from another vantage, Masterpiece Cakeshop is much more dangerous. Kennedy’s opinion arguably goes beyond merely allowing people to discriminate, when it is religiously based. Rather, religiously motivated bigotry is entitled to immunity from even being named as bigotry at all. Indeed, to refuse to whitewash religious bigotry (when it comes from right-wing Christians) is itself to evince hostility to religion (even from someone equally condemnatory of the same discrimination when not religiously motivated).

The crucial statement, from one of seven civil rights commissioners, that the Court found sufficient to strike down the commission’s action as hostile to the baker’s religious beliefs was this: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” The bulk of the statement is simply factually true, and there was no evidence that the commissioner in question was more hostile to religiously-grounded discrimination than to other grounds for discrimination. Strikingly, the statements were not at all specific to the baker’s faith but were very general statements about particular ways that religious justification has operated.

In contrast, here are several justifications for the travel ban, offered by Trump, that the Court found insufficient to strike down his actions as hostile to Muslims: “We’re having problems with the Muslims”; “Islam hates us.”; and “Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.” These, moreover, were accompanied by explicit statements and other evidence that these were the true reasons for the travel ban, while the legalese of the successively revised Executive Orders was pretextual.

By censuring the public criticism of discrimination, Masterpiece Cakeshop actually is quite consistent with Trump v. Hawaii (upholding the travel ban), even though in other ways they exhibit a stark double standard as between (largely invented) anti-Christian and (blindingly obvious) anti-Muslim bias. What they share is that both opinions are elaborate exercises in refusing to name even obvious discrimination as such.

Masterpiece Cake further weaponizes this gaslighting by mounting a counterattack on antidiscrimination law using the techniques of false equivalency. The Court’s fundamental objection seemed to be that the Commission had found it nondiscriminatory for other bakers to refuse to make cakes with anti-gay inscriptions that invoked biblical passages. As Justice Ginsburg pointed out in dissent, however, those cases involved no evidence of bakers’ hostility toward religious expression that wasn’t anti-gay, nor did the bakers distinguish between religiously and nonreligiously articulated anti-gay hostility. In other words, the Court’s analysis relies upon equating the act of calling out discrimination—or refusing to be a party to it—with engaging in discriminatory acts.

Notably, this is not new territory for Kennedy. To the contrary, it is entirely consistent with the core logic of his notorious opinion interpreting Title VII’s prohibition on race discrimination in Ricci v. DeStefano. There—again, subtleties aside for now—the Court held that intentionally attempting to avoid the racially disparate impact (favoring whites) of a civil service exam was itself a form of discrimination (against whites), and indeed a more serious one than disparate impact discrimination itself. Thus, Ricci went beyond protecting white firefighters’ racial privilege in the material form of access to good jobs; it affirmatively barred, as themselves discriminatory, efforts to name and change that privilege and the discrimination that sustained it.

The through line here is that calling out discrimination is itself forbidden, and forbidden as discrimination. So rather than being a narrow opinion, Masterpiece Cakeshop may really be an anthem for the Trump era, where hostility to racism (or heterosexism) is treated as the equivalent of racist (or anti-religious) hostility. It is “both sides”-ism constitutionalized.