Two Readings Regarding the Free Exercise Clause of the First Amendment and How it Relates to the
Masterpiece Cakeshop Ruling
 

Both of these articles are written by John Eastman of Chapman University.  One before and one after the ruling.

In reading and studying these two articles you will establish a very clear and thorough understanding of the Free Exercise Clause and how it has been undermined significantly over the past half century.  

Article A -
Whether Faith is Between You and Your God, or You and Government

December 4, 2017

But Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission is, fundamentally, about religious liberty.

The cake maker’s refusal to bake a cake for a ceremony purporting to wed two people with same-sex attraction stems from the cake maker’s religious principles. As in other cases involving photographers and florists,

the core conflict here is whether civil society permits those who are compelled by “decent and honorable religious or philosophical premises,” as the Supreme Court said in Obergefell v. Hodge (2015), to exercise those premises.

In other words, can those who disagree with cultural progressivism’s dominant positions freely exercise religion?  

How Far We've Come From Guarding Freedom

That the government could bestow a right on some Americans to force their fellow citizens to violate their conscience—and that a legal challenge to such an effort would be primarily considered to raise a free speech question, rather than a free exercise question—evinces the extent to which we have strayed from the Founders’ understanding of religion’s role in creating and sustaining a free society.

The amicus brief submitted by the Claremont Institute’s Center for Constitutional Jurisprudence details why the First Amendment’s guarantee of the free exercise of religion is for each person to pursue the duties he owes the Creator. 

The government cannot “prohibit” the free exercise of religion because the rights and duties we possess as free men exist prior to government. As the Declaration of Independence confirms, our government was formed to safeguard those rights and in light of those duties.

Logically, the government's temporal power (temporal is withing time and space; versus heaven's eternal, supernatural  power) cannot prohibit them (our religious rights and duties as free persons to an eternally good and loving God) and still be within its proper realm (subject to God and God's laws). 

As James Madison put it in his “Memorial and Remonstrance,” man’s religious “dut[ies] [are] precedent (established principal of rule, they come first and foremost)  both in order of time and in degree of obligation, to the claims of Civil Society,” and, therefore,

 “in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.”

Cognizance - the act of taking judicial notice.  Madison believes that religion/faith should not have to notice/follow the Laws of Civil Society. 

Such a view cannot be reconciled with the founding—or any tenable understanding of limited government.  

Deciding the State's Sway Over Your Soul

Alas, thanks in large measure to some Supreme Court decisions (including one by Justice Scalia from 1990 called Employment Division v. Smith), civil society need no longer recognize religious exercise’s unique contribution to ordered liberty. If a majority of citizens restrict religious exercise in a “neutral” and “generally applicable” way (i.e., the majority is savvy enough to target religious dissenters by appealing to other enticing values, rather than singling them out), then the Supreme Court says religious exercise exists only at the majority’s mercy.

Now, with the rise of “anti-discrimination” laws that are interpreted to force Americans to validate certain lifestyle choices, rather than prohibit invidious distinctions against immutable characteristics, progressives have all the tools they need to let the state decide when you stand at peril of your soul.  If the Supreme Court approves of using these tools together in Masterpiece Cakeshop, Abraham Lincoln’s admonition against accepting the legitimacy of the Dred Scott decision will prove its prescience:

 “[T]he policy of Government upon vital questions affecting the whole people” will have been “irrevocably fixed by decisions of the Supreme Court . . . [and] the people will have ceased to be their own rulers.”

Properly understood, the free exercise of religion ensures the sovereignty of the soul—an inherent limit on government power—and a vibrant, diverse public square. The threads that are left of this proper understanding are at stake in Masterpiece Cakeshop. Hopefully, the Supreme Court will preserve them. In any event, we must.

Dr. John Eastman is a senior fellow of the Claremont Institute and founding director of its Center for Constitutional Jurisprudence. He is also the Henry Salvatori Professor of Law and Community Service at Chapman University's School of Law.

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Article B -
Why the Masterpiece Ruling is Truly a Major Win for Religious Liberty

June 7, 2018

What's the Point?:

Free Exercise Clause Jurisprudence

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Why the Masterpiece Ruling is Truly a Major Win
for Religious Liberty

Despite years of case law emptying free exercise, the Supreme Court has now confirmed that government cannot apply laws in a discriminatory way against religious believers.

By John Eastman of Chapman University Law School
JUNE 7, 2018

Progressives’ prompt trivializing of Monday’s victory for religious liberty in Masterpiece Cakeshop v. Colorado Civil Rights Commission is unsurprising, but that many conservatives have reacted in the same way is troubling.  Two essays at The Federalist belittled the ruling; Catholic Vote called it a “very small win for religious liberty,” while the Wall Street Journal’s editorial board says the victory for religious liberty “may be short lived.” An essay at First Things, though, takes the proverbial cake: “Only profound naïveté can spin the majority decision as a victory for religious liberty.”

If victory produces this level of lament, it is disturbing to contemplate how conservatives would have reacted to defeat.  Conservative cynicism toward Masterpiece Cakeshop suggests a deep—although somewhat appreciable—misunderstanding of Free Exercise Clause jurisprudence. As I explained  when writing about this case at The Federalist before oral argument, despite the popular media and the primary argument made in favor of the baker making this case about free speech, in reality this case “is, fundamentally, about religious liberty.” 

The Supreme Court agreed. Despite almost 30 years of Supreme Court case law emptying the First Amendment’s Free Exercise Clause of almost all substantive content (thanks largely to a 1990 decision by Justice Scalia called Employment Division v. Smith), 

This Mends a Long Trend of Slashing Free Exercise

You may be surprised to learn that this is the first time since the Smith (1990) decision that the Supreme Court has said the Free Exercise Clause reaches that far. (Stating that the law does not have to be specifically targeted toward a  religious community, in this situation, a particular Christian belief to be covered by the Free Exercise Clause.)  Smith (1990) rejected a long line of Free Exercise jurisprudence ( a series and pattern of law decisions that future decisions are based upon) that allowed religious accommodations to laws that are written “neutrally” (meaning the letter of the law does not target religion) and apply “generally” (meaning the law applies to everyone). 

Instead, Smith (1990) held that any infringement on religious exercise would only receive “strict scrutiny” from a court—the most difficult standard for the government to meet in constitutional law—if the religious exercise was part of a “hybrid” of a free-exercise claim and another constitutional claim, usually a claim under the Freedom of Speech Clause.

Even in those “hybrid” cases, Smith said, the court would “specifically advert” (turn away and look at)  the analysis of whether the religious objector should receive accommodation to the other, non-free-exercise claim—again, usually a free-speech claim.  In the decades that have followed, this standard has robbed the Free Exercise Clause of significant teeth. No other individual right specifically enumerated in the Constitution is as difficult to successfully invoke, and nearly all of the landmark religious liberty cases since Smith (for example, Hobby Lobby) have resulted from Congress, in a repudiation of Smith, passing the Religious Freedom Restoration Act into law. Indeed, the way Masterpiece Cakeshop was argued—primarily as a free-speech case, not a free-exercise case—evidences the second-tier status Smith gave to the Free Exercise Clause. 

Given this history, it is stunning that the free-exercise claim, not the free-speech claim, saved the day in Masterpiece Cakeshop. This alone implicitly rejects Smith’s understanding of “hybrid” situations. This alone also suggests that Smith’s relegation of religious liberty is not as sweeping as it seemed to many at the time it was decided. (Although, as justices Gorsuch and Alito said at the outset of their separate opinion in Masterpiece Cakeshop, Smith “remains controversial in many quarters.”)

The Mend Goes Farther Than Patching Smith

But Masterpiece Cakeshop’s breath of fresh air into the Free Exercise Clause is not limited to its curtailing of Smith. Masterpiece Cakeshop is the first Supreme Court decision to apply Church of the Lukumi Babalu Aye, Inc. v. Hialeah, the 1993 Supreme Court decision that is for all practical purposes what remains of Free Exercise protection after Smith. Better still, in key respects, Masterpiece Cakeshop improves upon Lukumi.  Lukumi confirmed that the Free Exercise Clause, even after Smith, did not leave religious claimants empty-handed—at least not completely—when a law is written in such a way that it targets religion. There, a city passed ordinances that were not neutral, because they applied only to the “ritual” “sacrifices” of animals, not to slaughter more broadly (although they did apply to every “sacrificial” slaughter). As such, the ordinances were clearly designed to target the practices of a particular religion. 

While a unanimous Supreme Court concluded that, given the design,  the ordinances were not neutral or generally applicable, and thus had to survive “strict scrutiny,” the justices were deeply divided on what evidence could support this conclusion. Moreover, for the next 25 years no Supreme Court decision ever clarified what makes a law “neutral” or “generally applicable”—until Masterpiece Cakeshop.

Government May Not Be Offended by Religious Beliefs

Despite numerous conservative pundits suggesting that Masterpiece Cakeshop was a purely “procedural” decision that was not decided on First Amendment grounds, the Supreme Court’s decision was, in fact, both an application and extension of Lukumi.  It also included considerably more unity among the members of the court than Lukumi  possessed. The court did not simply accept Colorado’s argument that the state’s public accommodation law was neutral and generally applicable because it was written that way. Nor did the court refuse to apply Lukumi because there was no evidence that the public accommodation statute was designed to target religious believers.  The Supreme Court also rejected limiting its “neutrality” analysis to whether the Colorado Civil Rights Commission treated the baker fairly.

Rather, the court applied Lukumi into the distinct process of administrative adjudication (the decision made by a judge) to see how the law applied—not how it was designed—and whether the government’s application of that law, not just in the baker’s case but comparing his case to other cases, neutrally pursued a compelling government interest.

In short, Masterpiece Cakeshop is the first post-Smith Free Exercise decision where the Supreme Court applied strict scrutiny to a neutral, generally applicable law that was not designed to target religion. Rather, strict scrutiny was triggered because of how the law was applied against religious objectors.

How This Will Affect Other Religious Liberty Cases

The practical significance of this result cannot be overstated. For example, right now in Washington DC the Archdiocese of Washington is being denied the ability to put up signs in the Metro transit system inviting people to attend Mass during the Christmas season. The DC Metro has allowed ads setting forth a secular view of Christmas (such as ads to buy “holiday gifts” at department stores), but not a religious view (like a manger scene with mass times posted below it; the ad that was rejected).

Metro is refusing because, as it told the U.S. Court of Appeals for the DC Circuit, religious ads might be “offensive.” But not to worry, Metro says: its policy is neutrally and generally applicable, and it was not designed to disadvantage religious believers. In fact, its policy restricts all sorts of ads DC Metro deems “offensive,” along with censoring religious ads altogether.

But it is the Metro that gets to decide whether an ad’s reference to religion is sufficiently “religious” or “offensive” to be barred by the policy (!!!). It allowed, for example, an advertisement to donate to the Salvation Army, but it did not allow the archdiocese’s advertising of mass times. Masterpiece Cakeshop confirms that, even if this policy was written in a neutral and generally applicable way, not designed to target religion, the application of this policy provides disparate (fundamentally different) treatment toward religion and the policy is therefore NOT neutral.

Don’t Let the Trend Blind You to This Shift

I mentioned above that the misunderstanding of Free Exercise jurisprudence that appears in so much conservative cynicism toward Masterpiece Cakeshop is somewhat appreciable. This is so because Smith’s subordination of the Free Exercise Clause has accompanied the Supreme Court aggrandizing (making greater than it was meant to be)  the Freedom of Speech Clause.  As one of Claremont’s John Marshall Fellows, William J. Haun, has explained, this aggrandizement—extending the freedom of speech to (cover and protect) depictions of animal torture, graphically violent video games, and lying about receiving military medals, just to name a few of the Supreme Court’s recent extensions—bears no relationship to the freedom of speech as an original matter, the Founders’ political philosophy of natural law and natural rights. (Rather,) it results from “autonomizing” (making Free Speech a law unto itself) the freedom of speech.  When the developments of the free speech and free exercise doctrines are taken together, the result is conservatives being accustomed to any First Amendment victories being free-speech victories, full of all the rhetorical flourish that accompany the Supreme Court’s expansive approach to expression. This is very different to the case-by-case, fact-specific application of a particular religious objection to a particular government action.  Unfortunately, this shift seems to have blinded some conservatives from seeing a genuine win for the Free Exercise Clause when one comes along. Masterpiece Cakeshop is such a win, and this will surely be borne out (confirmed .  Not: give birth to ...) in future free-exercise cases.

Dr. John Eastman is a senior fellow of the Claremont Institute and founding director of its Center for Constitutional Jurisprudence. He is also the Henry Salvatori Professor of Law and Community Service at Chapman University

The above article is taken from The Federalist 6/7/2018.

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