The actual results of Masterpiece Cakeshop, Ltd, v. Chicago Civil Rights Commission (2018) yield a 7-2 conservative majority in favor of Mr. Phillips consisting of Justice Roberts, Justice Kennedy, Justice Thomas, Justice Breyer, Justice Alito, Justice Kagan, and Justice Gorsuch. The liberal minority consist of Justice Ginsberg and Justice Sotomayor. Justice Kennedy delivered the opinion of the Court.
The set of ideological values that best predict the actual outcome of the case is the general ideological score. A 5-4 conservative majority in this case was expected with Justices Kennedy, Thomas, Roberts, Alito, and Gorsuch in the majority. Justices Ginsberg, Breyer, Sotomayor, and Kagan were in the expected minority.
Attitudinal Model Evaluation¶
The discrepancy between the expected results and the actual results is difficult to explain. Restricting the analysis at this point to only the attitudinal model the explanation must be that the ideologies of the justices acted upon the facts of the case, the situations in an unexpected way. This could be caused by two factors. The first being that the variables defining conservatism and liberalism are inaccurate. The other being that Justices, primarily the liberals which voted conservatively voted against the dictate of their ideological preferences.
As stated above the attributes defining liberalism are pro-civil liberties or civil rights, pro-underdog, anti-owner, anti-business, pro-government, pro-exercise of judicial action, and pro-judicial activism. Justice Breyer and Justice Kagan both tend to vote towards this direction. In Masterpiece Cakeshop Ltd, v. Colorado Civil Rights Commission (2018) however, they did not. To run through the facts of the case quickly, Mr. Phillips is the proprietor of a small business that discriminates against a quasi-suspect class of citizens (non-heterosexual couples) in violation of Colorado state civil rights law. When brought to suit, a civil rights administration of the state of Colorado, which is de-facto a quasi-judicial bureaucracy, oversaw the case and declared Mr. Phillip in violation of generally applicable and religiously neutral Colorado public accommodation laws. Or in other words, every factor leading to a liberal vote is apparent in this case. So then, Justices’ Breyer and Kagan moving in the conservative direction is remarkable.
Or is it? While reading through the Court’s opinion, the Court does not greatly address Mr. Phillips’ claim. In fact, Justice Kennedy completely side steps the freedom of speech and religious freedom haymaker. Rather, the object of consideration turns from Mr. Phillip’s to the actions of the state’s Civil Rights Commission. “When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.” (Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission 2018) Considering this change in object, is it that the pertinent facts of the case change as well?
Pro-civil liberties or civil rights, pro-underdog, anti-owner, anti-business, pro-government, pro-exercise of judicial action, and pro-judicial activism all still apply. With the additional imposition by the Commission of “comprehensive staff training” and “quarterly compliance reports” it could also be argued that the pro-affirmative action factor may be active in this case. However, the startling material fact that distinguishes this case is the abject hostility the Civil Rights Commission demonstrated towards Mr. Philips’ “sincerely held religious beliefs (Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission 2018).” Therefore, the pro-neutrality of the establishment clause is grossly violated. To such a degree that the “clear and impermissible hostility towards [the] sincere religious beliefs (Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission 2018)” forced two liberal Justices to join the conservative coalition.
In Justice Kagan’s own words,
“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” Ante, at 12. I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. (Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission 2018)
What is apparent then is that Justice Kagan recognizes that in order to apply the establishment clause neutrally the federal and state governments must not act with hostility towards individuals with sincerely held religious beliefs. Laws of general applicability in order to be constitutional must not unduly harm religious individuals. Thus, Justice Breyer, and Justice Kagan both agree in full with the opinion of the Court.
Legal Model Evalution¶
More startling then the actual outcome of the case is the fact that the Justices largely adhered to precedent, or at least to the judicially created rule that valid law applied neutrally in respect to the establishment clause may be considered good law. When considering the facts of the case to previous first amendment questions the results in light of the Civil Rights Commission’s hostility towards Mr. Phillips are not in any way remarkable.
The three-pronged Lemon v. Kurtzman (1971) test exclusively could yield the same results. First the Colorado law does have a secular purpose. On the other hand, due to the way in which the Civil Rights Commission applied the law, its effect “inhibits religion”. Because of that inhibition, the Colorado state government does become unnecessarily entangled in religion. Passing through the matrix, the actions of the state are obviously unconstitutional.
Consulting also Employment Div. v. Smith (1990) the court in Masterpiece Cakeshop Ltd, v. Colorado Civil Rights Commission (2018) stuck to their statement that “it is a permissible reading of U.S Const. Amend. I to say that if prohibiting the exercise or religion is not the object of a law, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended (Employment Div. v. Smith, 1990).” Therefore, a law of general applicability, applied neutrally does not warrant individual exemptions. A point driven home by Justice Kennedy in the majority opinion, and also by Justice Kagan in her concurrence.
Also echoed is the basic reasoning of Obergefell v. Hodges (2015) that “under the Due Process and Equal Protections Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived” of their right to marry and to share the same privileges of same-sex couples.
The cynical critique, however of the Court’s adherence to precedent is the fact that to a large degree precedent does not conflict with the ideological preferences of the members of the Court. Many of the cases cited by Justice Kennedy he either authored or was member to the majority. To those that he was not, the opinions may be linked to ideological predecessors.
Justice Kagan and Justice Breyer most likely voted “conservatively” due to the fact that the outcome of the case supports well established liberal precedent. Namely in support of the neutrality of the establishment clause. The opinion may have also persuaded their vote. In it Justice Kennedy supports the validity of public accommodation laws protecting the civil rights of same-sex couples and people of other sexual orientations. In the words of the Court, “It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018)”. It is my hypothesis that due the fact that this provision, which supports the basis of the Colorado Public Accommodation law, and the opinion in general supports a neutral application of the Establishment Clause, two liberal Justices voted in the conservative majority.