Masterpiece Cakeshop & Fulton and Individualized Exemption Process

 Here is an excerpt from my article on Masterpice at p. 16-17:

Second, and most important, the Commission applied a double standard when investigating discrimination complaints against bakers who refused to create cakes that expressed messages of which they disapproved. Although the Colorado public accommodations law prohibits discrimination on the basis of religious “creed” as well as “sexual orientation,” the Commission applied a more lenient standard to claims of religious discrimination than to claims of sexual orientation discrimination. On at least three different occasions, cake artists refused to bake cakes with religious “images that conveyed disapproval of same-sex marriage.” Under the public accommodations law, the state of Colorado conceded that “[b]usinesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be ‘offensive.’” The Commission applied this “offensive product” exception subjectively and on an ad hoc basis, apparently granting an exception when it agreed with the cake vendor and refusing an exception when it disagreed with the vendor.Thus, the Commission repeatedly allowed cake artists to refuse to create “offensive” cakes, even though the customer was in a protected class—religious “creed”—under the public accommodations law.

 

 

 Now consider this passage from Fulton:

 

A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’” For example, in Sherbert v. Verner (1963), a Seventh-day Adventist was fired because she would not work on Saturdays. Unable to find a job that would allow her to keep the Sabbath as her faith required, she applied for unemployment benefits. The State denied her application under a law prohibiting eligibility to claimants who had “failed, without good cause . . . to accept available suitable work. We held that the denial infringed her free exercise rights and could be justified only by a compelling interest.

Smith later explained that the unemployment benefits law in Sherbert was not generally applicable because the “good cause” standard permitted the government to grant exemptions based on the circumstances underlying each application. Smith went on to hold that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.

 

Now this from Fulton: 

The City initially argued that CSS’s practice violated section 3.21 of its standard foster care contract. We conclude, however, that this provision is not generally applicable as required by Smith. The current version of section 3.21 specifies in pertinent part: “Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”

This provision requires an agency to provide “Services,” defined as “the work to be performed under this Contract,” to prospective foster parents regardless of their sexual orientation. Like the good cause provision in Sherbert, section 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS. But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason” . . . .

 

Now this (edited from linked version) from Fulton:

 Finally, the City and intervenor-respondents contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one.That misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, Smith, 494 U. S., at 884—here, at the Commissioner’s “sole discretion.”

So Sherbert lives on greatly, as an individualized exemption decision triggering real strict scrutiny.