The Colorado Baker Opinion Should Not Be Considered an Administrative Law Precedent, by Richard J. Pierce, Jr.

by Guest Blogger — Thursday, June 7, 2018

Masterpiece Cakeshop v. Civil Rights Commission required the Supreme Court to determine the validity of an order issued by the Colorado Civil Rights Commission that required a baker to bake and sell a wedding cake to a gay couple who were exercising the right to marry that the Court conferred on them in Obergefell v. Hodges. The case presented the Court with the opportunity to answer many difficult First Amendment questions: E.g., Is the process of baking a wedding cake a form of speech that the government cannot regulate? Is the process of baking a wedding cake an exercise of religion that government cannot regulate? Is the process of buying a wedding cake a right that the government can enforce against a baker who objects based on his religious belief that gay marriage is immoral?

In its June 4 opinion, the Court declined to answer any of those questions. It decided the case based on principles of administrative law that courts apply routinely to all agency adjudications. The reasoning process the Court used was far removed from any prior application of those principles in any other context, however. If the Supreme Court or lower courts use a similar reasoning process in the myriad other contexts in which the issues arise, they will create an environment in which it is impossible for federal, state and local agencies to function effectively. Courts should treat this opinion as a precedent that applies only to cases involving religious liberty.

The Court held that the order the Commission issued in Masterpiece was invalid because the Commission did not give the case “the neutral and respectful consideration to which Phillips [the baker] was entitled.” The Court relied on a combination of statements made by members of the Commission and prior orders issued by the Commission as the basis for its holding that the decision was invalid because the decision making process was impermissibly biased.

There is a large body of case law in which courts have addressed the two types of flaws that the Court detected in Masterpiece. Courts have issued many opinions in which they have decided whether an agency was impermissibly biased based on statements made by agency decision makers and many opinions in which they have decided whether an agency departed from its precedents without providing an adequate explanation for the departure. I discuss those opinions in sections 9.8 and 11.5 of my Treatise on Administrative Law. The opinion in Masterpiece applies a version of those two doctrines that is far more demanding than the version that any court has ever applied in any other context.

The Court relied primarily on three statements that Commissioners made in public hearings to support its conclusion that the Commission was impermissibly biased. One Commissioner made two statements about the appropriate role of religion in business that the Court accurately characterized as being “susceptible of different interpretations”—one of which is innocent.

Another Commissioner made the following statement:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use—to use their religion to hurt others.

The Court treated that statement as dispositive evidence that the seven-member Commission was impermissibly biased against the baker.

The Court’s reasoning is bizarre. The two ambiguous statements of one of the Commissioners do not even qualify as evidence that the Commissioner who made the statements was biased against the baker, much less that the seven-member Commission was impermissibly biased, or that any such bias played a role in the decision making process.

The statement of the other Commissioner that the Court found determinative is a demonstrably accurate description of history. Religion has been used to justify all kinds of discrimination, including slavery and the holocaust. The Commissioner could have added many more examples of such “despicable” uses of religion. My personal favorite is the Children’s Crusade—the religious movement that dispatched an army of children to free the Holy Land from the Muslims in 1212.

It may not have been prudent for a Commissioner to make such a statement at a hearing to consider a particular case that bears little relation to such despicable uses of religion, but the statement does not come close to establishing that the Commissioner who made the statement was impermissibly biased against the baker, much less that the entire Commission was biased against the baker, or that any such bias played a determinative role in the decision making process.

Imagine how the Court’s reasoning might apply in any of the other contexts in which government at all levels relies on multi-member bodies to make decisions. Consider, for instance, a decision made by a seven-person zoning board after a public hearing at which one of the Commissioners reminds the other members of the history of either the good effects of zoning or the bad effects of zoning. It is easy to summarize that history accurately in a way that emphasizes either the good effects or the bad effects of zoning. There is nothing wrong with any government official beginning her decision making process with an emphasis on either perspective.

The ideal multi-member zoning board includes some members who begin their deliberations by focusing on the potential good effects of zoning and some who begin their deliberations by focusing on the potential bad effects of zoning. That is the basic belief that underlies the ubiquitous statutory requirement that multi-member decision making bodies can consist of no more than a bare majority of members of the same political party. We choose to rely on multi-member agencies comprised of members with differing views to perform important tasks because we believe that we will get the best decisions from a multi-member body that includes people with different entering perspectives.

The only other basis for the Masterpiece Court’s holding that the Commission’s decision was infected with impermissible bias was its conclusion that the Commission did not explain adequately why it decided the Masterpiece case in a manner that was inconsistent with its precedents.

An agency is required to explain why it acts in a manner that is inconsistent with its precedents, but the action the Commission took in Masterpiece was entirely consistent with its precedents. In three prior cases the Commission had held that bakers could lawfully refuse to bake and sell cakes that display messages that the Commission considers offensive. In those cases, the prospective buyers had requested cakes with messages that referred to religion as a justification for discrimination against gays and lesbians.

The gay couple who ordered the wedding cake did not request that it include any message, much less a controversial message. The Masterpiece case would have been analogous to the precedents only if the gay couple had requested a cake with a message like: “God favors gay marriage.” There is every reason to believe that the Commission would then have issued an order that reaffirms the sound principle that was the basis for the prior orders. It would have held that a baker can lawfully refuse to bake a cake that includes a message that the baker finds to be offensive-whether the message invokes religion to support or to oppose gay marriage.

If courts apply this bizarre version of the duty to explain departures from precedent broadly in other contexts, all agencies will have to engage in creative thinking to imagine all of the prior actions of the agency that a court might later mischaracterize as inconsistent with the action the agency is taking. Each agency would then have to write an extraordinarily long opinion to accompany each order in which the agency explains why its action is consistent with every prior action that any court might mischaracterize as inconsistent with the action it is taking.

I don’t know enough about religious liberty disputes to evaluate the opinion the Court issued in Masterpiece in that context. Even if it makes sense in that narrow context, it makes no sense in the broader context of decision making by multi-member agencies in any other area of law. Lower courts and agencies should interpret the opinion in Masterpiece narrowly as an opinion that announces rules that are uniquely applicable to agency decision making in religious liberty cases.

 

Richard J. Pierce, Jr. is the Lyle T. Alverson Professor of Law at George Washington University Law School.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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One thought on “The Colorado Baker Opinion Should Not Be Considered an Administrative Law Precedent, by Richard J. Pierce, Jr.

  1. Eric Hirschhorn

    The opinion of the Court represents nothing more than Justice Kennedy et al. grasping at a straw. Once he leaves, it’ll be Katie-bar-the-door on all manner of cases, as the Hyperpolitical Four become the Hyperpolitical Five. SAD!!

    Reply

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