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The Baker and the Boxer

By Carlos A. Ball

Masterpiece Cakeshop
Masterpiece Cakeshop. Photo credit: Jeffrey Beall

The Supreme Court’s recent ruling involving the Colorado baker who refused to make a wedding cake for a same-sex couple reminds me of its decision almost fifty years ago to reverse Muhammad Ali’s conviction for refusing to be inducted into the Army. In 1967, when Ali was the professional heavyweight boxing champion of the world, he refused to join the Army on the ground that he was a conscientious objector. At the time, federal prosecutors claimed he was not entitled to the exemption from military service because his objections to fighting in the Vietnam War were not sincere. By the time the case reached the Supreme Court four years later, the government had changed its legal position, and was now arguing that although Ali’s religious objections to serving in the military were held in good faith, he was not entitled to the exemption because he had not proven that he objected to participating in any war, as opposed to only those armed conflicts that he deemed unjust.

The Supreme Court, after accepting the boxer’s appeal, had a dilemma on its hands: reversing Ali’s conviction might make it possible for thousands of other men to also claim conscientious objector status as a way of refusing to serve in a controversial and unpopular war. In the end, a unanimous Court overturned Ali’s conviction. But it did so in such an exceptionally narrow way that it made it extremely unlikely that other exemption claimants would be able to use Ali’s victory as a legal precedent.

The justices based their reversal on the procedural ground that the federal government had taken inconsistent positions in the case, first claiming that Ali’s religious objections to war were not sincere, but then conceding that the boxer was acting in good faith. The government’s change in position, the Court concluded, was enough to vacate Ali’s criminal conviction because it rendered unclear the government’s reasons for denying him the exemption.

Similarly, when the Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission recently sided with the baker who refused to make a wedding cake for a gay couple, it did so in an extremely narrow way. The couple had sued under a Colorado law that prohibits places of public accommodation, including most businesses, from discriminating on the basis of sexual orientation. In defending himself from the lawsuit, the baker claimed that the First Amendment’s protections of free speech and the free exercise of religion granted him a constitutional right to continue baking wedding cakes for heterosexual couples, but to refuse to do so for same-sex ones. The baker argued that being required to bake a cake for gay couples forced him to publicly support same-sex marriages in contravention of his religious views.

As I explain in my book The First Amendment and LGBT Equality, the Supreme Court has never recognized the notion that the owners of for-profit businesses have a constitutional right to discriminate. As Justice Sandra Day O’Connor put it in a case involving gender discrimination, “the Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State. [For example], a shopkeeper has no constitutional right to deal only with persons of one sex.” Had the Supreme Court accepted the baker’s constitutional argument in Masterpiece Cakeshop, it would have made it possible for a large number of religious business owners to refuse to abide by the same antidiscrimination laws that apply to everyone else.

It is worth noting that the baker’s legal argument was not intended to protect (1) only certain religious objections to serving (2) only some classes of individuals. Instead, recognizing the baker’s constitutional claim would have laid the foundation for making it possible for any defendant in any discrimination case—whether involving a claim of racial, sex, religious, disability, sexual orientation, or gender identity discrimination—to use religious views as a shield against the enforcement of laws applicable to everyone else.

Rather than holding that the Constitution granted the baker a right to refuse serving certain segments of the population because of his religious views, the Supreme Court instead ruled on his behalf in an extremely narrow way. In doing so, the Court reasoned that statements made by two members of the seven-member Colorado Civil Rights Commission could be understood to reflect prejudice on the basis of religion, therefore depriving the baker of a fair opportunity to have his legal case adjudicated by an impartial governmental body.

As other commentators have pointed out, it is not at all clear that the two statements in question constitute evidence of religious prejudice. Among other things, they pale in comparison to statements made by Donald Trump about the need to ban Muslim immigrants from entering the United States. But be that as it may, it is difficult to imagine how the Court could have sided with the baker in a narrower way. As with the Muhammad Ali case from the early 1970s, the Court in Masterpiece Cakeshop sided with the religious litigant against the government based solely on the procedural history of the case. This makes it impossible for social and religious conservatives to claim, as a substantive matter, that the ruling shields other religious employers, landlords, or business owners from having to abide by antidiscrimination obligations.

At the same time, the Court, speaking through Justice Anthony Kennedy, recognized two principles that are crucial to protecting LGBT people from discrimination going forward. First, the Court reaffirmed the general rule that religious 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.” Second, the Court recognized that religious exemptions allowing business owners to deny LGBT people goods and services stigmatizes and harms sexual minorities. As Kennedy explained, if such exemptions are “not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”

In short, while the baker in Masterpiece Cakeshop may have won his particular battle, the social and religious conservatives who supported his cause may have lost the war. The Supreme Court chose to decide the dispute as narrowly as possible, as it did in the case of the world’s most famous boxer almost fifty years ago, while reaffirming basic principles about the need to limit religious exemptions when applying antidiscrimination laws.

Few people today remember Muhammad Ali’s case before the Supreme Court (including apparently President Trump, who recently suggested that Ali should be pardoned despite the fact that, after the Court’s ruling in the early 1970s, there is nothing to pardon.) Similarly, it is entirely possible that fifty years from now few people will remember that the Colorado business owner who refused to bake a wedding cake for a same-sex couple also won his case before the Supreme Court.


About the Author 

image from www.beaconbroadside.comCarlos A. Ball is Distinguished Professor of Law at Rutgers University. His most recent book is The First Amendment and LGBT Equality. He is also the author of From the Closet to the Courtroom. His next book, The Queering of Corporate America, will be published next year by Beacon Press.