SCOTUSBLOG SYMPOSIUM: Masterpiece Cakeshop — not as narrow as may first appear.

What the Supreme Court said was different but may ultimately come to nearly the same place. The court said that the inconsistent treatment of Phillips and the protected bakers showed hostility towards Phillips’ religious faith. Colorado had violated its duty “not to base laws or regulations on hostility to a religion or a religious viewpoint.” The state must “proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs.” The commission had been “neither tolerant nor respectful”; it had proceeded on the basis of “a negative normative ‘evaluation of the particular justification’ for his objection” (quoting Lukumi).

There is a practical holding and an ideal holding here. The practical holding is that the unequal treatment of Phillips and the protected bakers is evidence of unconstitutional hostility. Conscientious objectors embroiled in litigation will have to send testers to smoke out uneven enforcement of anti-discrimination law. We expect that states are unwilling to require socially liberal vendors to produce goods with conservative religious messages they find offensive or against their conscience. If that is so, then those states cannot require religiously conservative vendors to produce goods in violation of their conscience.

The Supreme Court has announced a powerful ideal. Even when a law has no explicit exceptions, hostile enforcement is unconstitutional. Single-issue agencies that enforce state civil-rights laws must approach claims to religious exemptions with tolerance and respect. And this is apparently an absolute rule; the court does not consider whether hostility might be justified by some state interest, compelling or otherwise.

But a requirement of tolerance and respect, or even the avoidance of hostility, is difficult to enforce. The opponents of religious exemptions will now start doing the sorts of things done by many other government officials resisting constitutional mandates. They will seek doctrinal and rhetorical manipulations to cloak their hostility to the constitutional right, and their unequal treatment of objectors they agree with and objectors they don’t.

Colorado’s Civil Rights Commission will have to do a better job of hiding its hostility from now on, but I’m not sure they have it in them.