Is It the End of the Line for Charlie Craig & David Mullins’s suit against Jack Phillips?  Masterpiece Cakeshop as Bush v. Gore

“Why leave me standing here?

Let me know the way”

A number of commentators have already noted a similarity between the Supreme Court’s decision yesterday in Masterpiece Cakeshop and its decision in 2000 in Bush v. Gore.  Both opinions self-consciously frame their judgments in narrow terms, raising a question whether they provide much if any guidance for other similar disputes.  In holding that the presidential election recount in Florida deprived voters of equal protection of the laws, the Court’s per curiam (“for the court,” unsigned, with authorship attributed to no specific Justice) opinion in Bush v. Gore stated:  “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  In Masterpiece Cakeshop, the introduction of the Court’s opinion concludes: “Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the [Colorado Civil Rights] Commission’s actions here violated the Free Exercise Clause; and its order [directing the bakery not to discriminate against same-sex couples such as Charlie Craig and David Mullins] must be set aside.”  Both these pronouncements have supported concerns that the Court is treating its authoritative declarations of law as being (to borrow Justice Owen Roberts’s words in dissent from Smith v. Allwright (1944)) in “the same class as a restricted railroad ticket, good for this day and train only.”  People could long debate whether those, or other, instances are appropriate judicial minimalism, examples of the Supreme Court not deciding more than it needs to, or if instead they are unhelpful punting, ducking hard constitutional issues on which the nation needs definitive guidance.

But there’s another respect in which the Court’s decision in Masterpiece Cakeshop resembles its ruling in Bush v. Gore.  Both cases not merely vacated but “reversed” the judgments of the courts below.  Bush v. Gore held that the election recount ordered by the Florida Supreme Court violated that state’s voters’ right to equal protection of the law; Masterpiece Cakeshop held that the remedial order entered by Colorado’s Commission violated the baker Jack Phillips’s right to the free exercise of religion.  So, both decisions direct outcomes in the suits at issue.

But, in another point of commonality, it’s not clear these Supreme Court reversals had to/have to end the litigation at issue. In Bush v. Gore, the U.S. Supreme Court thought that after its ruling no recount would be possible consistent with Florida law and the notion that Florida election law contemplated finishing recounts by December 12, a so-called “safe harbor” date regarding slates of electors.  But in addressing that earlier, the Florida Supreme Court was talking about earlier phases of electoral disputes (“protests”), not the kind of electoral “contest” that was at issue in Bush v. Gore.  It should have been open to the Florida Supreme Court on remand to say, ‘the U.S. Supreme court misunderstood our opinion and misinterpreted Florida law, so on this election contest, let’s have a recount now that addresses SCOTUS’s equal protection concerns and gets our electors selected before the (later) time Congress actually will count electoral votes.’  It did not do so, perhaps intimidated by SCOTUS’s per curiam opinion.

In Masterpiece Cakeshop, the Supreme Court was even less forthcoming about the remedy. It reversed the court below, finding a constitutional violation in the Commission’s order where that court had seen none.  It specified that “the order must be set aside” and, more comprehensively later, “the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.” (my emphasis)  But the Supreme Court did not hold that Colorado’s Anti-Discrimination Act (CADA) could not be applied against the baker and the cakeshop; SCOTUS only held that it could not be applied with hostility toward religion.  And SCOTUS did not say that a newly constituted Commission (perhaps with one commissioner whose comments gave some Justices pause recusing; the other Commissioner is already no longer seated) could not revisit the questions whether or not the baker’s conduct violated CADA and, if so, what consequences should follow.  Justice Gorsuch’s concurring opinion, joined by Justice Alito, may have given the impression that they believed that was what must follow; they opined:  “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.”  But a majority of the Court did not say even that.  And while Justice Thomas, joined by Justice Gorsuch, would have held that the baker’s free expression rights prevent Colorado from enforcing CADA against him even in the absence of anti-religious hostility, again, the Court did not reach that broader constitutional question.  Absent some procedural obstacle in Colorado law, if the Colorado state court and then the Commission have the courage of their convictions, it seems to me that they may address those broader questions – fairly and without hostility to religion – even after complying with the U.S. Supreme Court’s decision in Masterpiece Cakeshop.