“What a Difference Five Years Makes”

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What would Masterpiece have looked like with Justice Kennedy still on Court?

Josh Blackman |

On the Supreme Court, a lot has changed in the past five years. Justice Kennedy was replaced by Justice Kavanaugh. Justice Ginsburg was replaced by Justice Barrett. Many Kennedy-brokered compromises would now come out differently. Last term, Justice Sotomayor lamented, “What a difference five years makes.” Here, she was counting the five years period from Trinity Lutheran Church v. Comer (2017) to Carson v. Makin (2022). Trinity was a 7-2 decision, that was joined by Justices Breyer and Kagan. Compromise was the name of the game back then. The Court held that the government could not discriminate a church for its religious “status,” but the Court left open the question of whether the government could deny funding for religious “uses.”  But over the ensuing five years, the Court retreated from that compromise. Carson, and before that Espinoza, made it very difficult for the government to deny funding for religious uses. The compromise fell apart. Justice Sotomayor’s regrets that the Court circa 2017 would have never supported that holding.

Justice Sotomayor repeated this same five-year line in 303 Creative v. Elenis. Here, she was counting five years from Masterpiece Cakeshop v. Colorado (2018). This decision, handed down in Justice Kennedy’s final term, avoided the Free Speech question, and instead ruled based on the Free Exercise Clause. Rather, in another 7-2 decision with Justices Breyer and Kagan on board, the Court found evidence of religious animus in the state proceedings, in violation of Lukumi. That decision avoided the question of whether a website was protected speech. Again, Sotomayor’s recalls that compromise was the playbook before Justice Kennedy retired. But there are new rules now. (I pause to stress that Justice Sotomayor dissented in both Trinity Lutheran and Masterpiece–no compromise on her part.) In 303 Creative, Justice Gorsuch wrote a full-throated defense of the website designer. Such an opinion would have been unfathomable in 2018.

What would Masterpiece have looked like if the Court did not decide the matter on free exercise grounds? Would Jack Phillips have lost on free speech grounds? I’m not sure that Justice Kennedy could have mustered that outcome. For sure, the Court would not have produced a rousing defense of free speech like the one that Justice Gorsuch delivered. In a way, the five year punt from 2018 worked out for the benefit of the Masterpiece Cakeshop and 303 Creative. Going forward, I remain uncertain how many of these cases will actually arise. I suspect tester plaintiffs will stop targeting the handful of vendors who decline to service same-sex weddings. These cases will simply fade away.

Speaking of five years, on the mop-up list, the Court GVR’d Klein v. Oregon Bureau of Labor and Industries. This case involves Sweet Cakes by Melissa, another baker who declined to make a wedding cake for a same-sex marriage. If this case sounds familiar, it should. In 2019, the Supreme Court GVR’d this case in light of Masterpiece Cakeshop. So the Supreme Court has now GVR’d the same dispute, twice, in light of landmark First Amendment cases. Has any case ever seen such treatment? Meanwhile, the Klein litigation has been ongoing for more than a decade. And, once again, the baker will have to slog through the Oregon courts. Now, did Justice Gorsuch’s opinion resolve whether a baker is involved in expressive speech? I don’t think so. The Oregon courts may once again rule against Klein. The Supreme Court will see this case again in another five years! And you wonder why Baronelle Stuzman settled the never-ending Arlenes Flower’s case while 303 Creative was still pending.

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