Notice & Comment

A Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications — A Comment on Masterpiece Cakeshop (Part I)


In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the Free Exercise Clause did not require governments to exempt religious adherents from generally applicable laws, even when those laws prohibited self-regarding actions performed as a part of a religious ceremony (namely ingesting peyote).  Id. at 877-79.  Resolving a claim brought by a same-sex couple against the Masterpiece Cakeshop, and its proprietor, Jack Phillips, the Colorado Civil Rights Commission required Phillips’ compliance with Colorado’s generally-applicable law prohibiting discrimination in public accommodations, Colo. Rev. State §24-34-601(2).  In particular, Phillips could not to refuse to bake or sell routine celebratory cakes for same-sex weddings, despite his religious objections to such unions.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172 (June 4, 2018), the U.S. Supreme Court invalidated that decision, not because it was flawed on the merits, but because the Court ascribed an unconstitutional motive to Civil Rights Commission.  The Court recognized its own internal disputes regarding attribution of illicit motives to legislative acts, but suggested ascribing such motives to multi-member administrative boards resolving cases after a trial-type hearing was less troublesome.  Id. at *10.  In reaching its decision, the Court’s failed to fully appreciate the administrative context.

The Court did not consider the mechanisms for seeking recusal of biased decision-makers in the administrative context, and the obligation of parties to invoke such mechanisms.  Nor did the Court consider standard administrative law norms regarding bias — had it properly done so it might have appreciated the problematic nature of its approach.  Viewed in the proper context, the three statements the Court focused on as exhibiting bias probably were not disqualifying.  And faulting the Commission for failing to address three intuitively distinguishable matters still in the investigative stage is a strikingly extreme version of the requirement for administrative consistency.

This is the first of three posts elaborating upon the above critique.  The remainder of this post will discuss several Supreme Court and Court of Appeals cases resolving charges that legislative acts violated the Establishment Clause due to the allegedly illicit religious or anti-religious motives underlying those enactments.  I will the briefly discuss the difference between the legislative and administrative hearing contexts.  My second post will explore the Masterpiece Cakeshop Court’s conclusion that statements made by members of the Colorado Civil Rights Commission justifies invalidating the Commission’s decision.  My third post will explore the Court’s suggestion that inconsistent Colorado Civil Rights Commission decisions suggest the presence of anti-religious bias.

Government Actions and Illicit Religious/Anti-Religious Motives

Under Lemon v. Kurtzman, 403 U.S. 602 (1971), government action that implicates religion: (1) “must have a secular . . . purpose”; (2) must have a “principal or primary effect” that “neither advances nor inhibits religion,” and (3) must not foster “an excessive government entanglement with religion.”  Id. at 612-13.  The Supreme Court has invalidate several state and local legislative acts for lack of a secular purpose.  See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (Kennedy, J.); Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985).

In Wallace v. Jaffree, the Court invalidated a Louisiana provision mandating a moment of silence in public schools.  The primary legislative sponsor inserted a statement in the legislative record asserting that “the legislation was an ‘effort to return voluntary prayer’ to the public schools.”  Id. at 56-57.  The Court noted that insertion of the statement was not met with dissent.  Id.  Moreover, in trial testimony the legislative sponsor had asserted that he intended the legislation to permit school prayer.  Id.  And, the Court noted, “the state did not present evidence of any secular purpose.”  Id. at 57 (emphasis in original).  In conjunction with these conclusions, the court explained that preexisting law already “protect[ed] every student’s right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.”  Id. at 59.  Thus, in the Court’s view, the challenged statute could only have been enacted to endorse and promote prayer in schools.   Id.

In Edwards v. Aguillard, the Court invalidated the Louisiana’s “Creationism” Act.  The Act required that public schools teach the theory of “creation science” if they taught the theory of evolution.  The Court explained at length how the statute did not further it purported goal of enhancing of academic freedom.  Id. at 586-89.  It noted that various provisions of the Act contained a “discriminatory preference for the teaching of creation science and against the teaching of evolution.”  Id. at 588. In that context it cited statements of the legislative sponsor in concluding that the stated legislative purpose was a sham.  Id. at 590-93. “The Court also noted that it had been “particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.”  Id. at 583-84.

In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, invalidated a local ordinance regulating the killing of animals.  The court scrutinized the statute itself, noting its under-inclusiveness.  Id. at 535-36.  In the Court’s view, the statute was a “religious gerrymander” that solely targeted the religious exercise of one particular religious sect.  Id.  The Court also noted the statement of purpose included in the ordinance’s text — “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety.”  Id. at 534-35.

While cases like Church of the Lukumi Babalu Aye, involving allegations that legislative bodies have acted with a primary purpose of exhibiting hostility toward religion, appear to have arisen less frequently, two Ninth Circuit opinions apply the Lemon purpose test to legislative acts, albeit non-binding resolutions, hostile to religion. American Family Assn. v. City and County of San Francisco, 277 F.3d 1118 (2002); Catholic League for Religious and Civil Rights v. City and County of San Francisco, 567 F.3d 595 (2009), aff’d on other grounds, 624 F.3d 1043 (2010)(en banc), cert. denied, 563 U.S. 974 (2011).

In the first case, the San Francisco Board of Supervisors adopted two non-binding resolutions.  One urged Alabama to include sexual orientation in its hate crimes legislation, and called upon the “Religious Right to take accountability for the impact of their long-standing rhetoric denouncing gays and lesbians.” American Family Assn, 277 F.2d at 1119.  The other attacked a series of television and print advertisements, one of which appeared in the San Francisco Chronical, asserting that “God abhors any form of sexual sin,” including homosexuality, and that embracing Jesus Christ provided an alternative to sexual sin and its deleterious consequences.  Id.  The ads were accompanied by statistics regarding homosexuality and sexually-transmitted diseases.  Id.  The Board’s Resolution called the ad campaign’s statistical assertions “erroneous and full of lies,” and stated that the campaign encouraged “maltreatment” of and violence against gays and lesbians.  Id. at 1120.  Several religious organizations sued the Board, claiming that the resolutions violated the Establishment Clause by disapproving of a “particular religion.”  Id. at 1120.  The Ninth Circuit “recognized the dual nature of views on homosexuality, and determined that San Francisco should not be hamstrung in its public policy simply because its secular position was at odds with certain religious views; that some perspectives on gay and lesbian issues are rooted in religious belief cannot overwhelm the fact that gay and lesbian issues are also secular policy matters.”  Catholic League, 567 F.3d at 604.

Catholic League arose out of a non-binding San Francisco Board of Supervisors’ resolution urging Cardinal William Levada, a Vatican official, “to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.” Catholic League, 567 F.2d at 597. The Catholic League alleged that the Resolution’s expression of hostility towards the Catholic Church and Catholic religious tenets violated the Establishment Clause.  Id. at 598.  The Ninth Circuit panel observed that “[t]o be sure, the Board could have spoken with a gentler tone, but the strength of the Board’s language alone does not transform a secular purpose into a religious one.”  Id. at 600.  It concluded that the Resolution’s primary message was a secular one, promoting same-sex adoption, and that any expression of hostility regarding Catholic tenets “was secondary at best.”  Id. at 600.  A fractured en banc panel ultimately affirmed in a decision that has little precedential authority.  Six judges found the plaintiffs had standing, but split 3-3 on the merits of the Catholic League’s Claim.   Five judges found no standing, and thus did not opine on the merits of the case.  Catholic League, 624 F.3d at 1046.

Suffice it to say that the municipal resolutions in each of these two cases are more “extreme” in terms of a potential anti-religious purpose than the Colorado Division of Civil Rights’ decision in Craig v. Masterpiece Cakeshop.

As Justice Kennedy noted, Masterpiece Bakeshop does not involves administrative proceedings.  Masterpiece Cakeshop, 2018 WL 2465172 at *10.  More particularly, the discrimination complaints against Masterpiece Cakeshop were resolved in trial-type administrative proceedings conducted under the Colorado Administrative Procedure Act, Colo. Rev. Stat. §§24-4-101 to 24-4-108, which resembles the federal Administrative Procedure Act.  Justice Kennedy relied on two types of evidence to find an illicit motive: (1) three statements made by individual members of the Colorado Civil Rights Commissions (all of which might have been made by one Commissioner), and (2) the unexplained inconsistency between the Commission’s decision in Masterpiece Cakeshop and three determinations of “no probable cause” subsequently made by the Director of the Colorado Civil Rights Division and affirmed by the Commission without opinion.  These grounds, at their core, raise questions typically considered ones of administrative law regarding recusal of agency decisions-makers and agencies’ obligation to explain departures from precedent.

Moreover, decisions by agency officials in trial-type adjudications differ from legislative enactments in yet another way.   Legislatures generally do not have an obligation to enact statutes or resolutions – legislative acts are initiated by elected officials, albeit acting to address public necessity or to assuage public concerns.  But agencies engaged in administrative adjudication must resolve disputes that come before them; unlike legislators they cannot simply leave the controversy unaddressed.  Thus, the predominantly secular purpose underlying the Commission’s decision was acquitting its obligation to resolve a legal dispute between potential customers and a business enterprise.  Surely one cannot readily view rejection of a religious claim for exemption as embodying a primarily anti-religious purpose, any more than accepting the claim for religious accommodation should readily be viewed as embodying a primarily religious one.

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