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12/05/2017

The Fourteenth Amendment and Masterpiece Cakeshop
Chris Green

David Upham and I, following up on our amicus brief in the case, have posted an essay at Public Discourse: The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law. Our summary: "The government cannot impose creedal and exclusionary limits on occupational freedom by compelling particular citizens to provide goods and services contrary to their beliefs, unless those citizens have such a monopoly market power as to exclude other citizens from the market."

Several of the justices at the oral argument today sounded themes relevant to our position, particularly the distinction between those with and without local-natural-monopoly market power.  Asking questions of Solicitor General Noel Francisco, who supported the baker, Justice Sotomayor at pp. 28-30 expressed concern about markets with local natural monopolies, such as professionals serving military bases. Our proposed resolution of the case would sidestep such markets.  Justice Kennedy followed up on this sort of concern at pp. 44-45, worrying that more and more professionals might take positions like Masterpiece. If and when they did, the change in market power would pose a different police-power question.

Several justices also pressed the lack of tailoring of Colorado's regulation to those with market power: Justice Breyer at pp. 57-58 noted that Colorado had not made any effort to accommodate those whose beliefs would not imperil the tangible goals of the law, returning at pp. 63-64 with a hypothetical about a referral-down-the-street accommodation, which Colorado rejected (flatly at first, then more tentatively). Justice Breyer also referred at p. 78 to "an important public policy, the policy of opening the doors to everyone, including minorities, in the public commercial area." Limiting the holding to low-market-power dissenting creedal minorities would leave that policy unimpaired, and indeed, the entire point of our Fourteenth Amendment argument is to preserve such a policy: "opening the doors to everyone, including [creedal] minorities [like Masterpiece], in the public commercial area."

The one place at which Justice Kennedy seemed most clearly to tip his hand about his inclinations in the case, at page 62, used similar reasoning. Because there were "other good bake shops that were available," Kennedy said, "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

It is true that no one on the Court (or at the podium) used the phrases "Fourteenth Amendment" or "original meaning," and commentators like Eric Segall tweaked Justice Gorsuch for the failure. Time was tight, however, and in looking for a doctrinal hook on which to hang a readily-available-substitutes holding, the Justices may yet turn Fourteenth-Amendment-ward. One can always hope!

Update (12/6): Reacting to the portion of the argument where Francisco answered Justice Sotomayor, Andy Koppelman comments on the readily-available-alternatives rule (part of Koppelman's argument that any and all resolutions in favor of the plaintiff would "lead to chaos"):

But notice how impossible this makes the burden for the discrimination claimant: now, in addition to proving the discrimination, the complaint would have to survey the neighborhood to prove that no substitute was available, which would mean contacting every other service provider to ask what they would have done. (And hope for truthful answers: Those who discriminate often don’t want to advertise that fact.)

This does not seem right to me at all. Those seeking wedding cake are, after all, seeking wedding cake, and it should be relatively easy to find out whether they found one and with what difficulty. The burden of showing the unavailability of a product is no different from the ordinary burden that a contract or tort plaintiff has in showing damages. Consider, for instance, one of the cases we discuss here at pp. 32-33: the 1844 plaintiffs in Hawthorn v. Hammond, who sued because they were "obliged to go on to Bridgenorth" after a hotel refused them entry. Assessing the "trouble, inconvenience, and expense" of a change in plans requires exactly the sort of assessment Koppelman calls impossible. It is not only possible, but near-ubiquitous in the law.