Wedding cake warning: policies & decisions must be content neutral
By: Lisa Hoover
At the beginning of the year, I wrote a blog post about the (then) upcoming Masterpiece Cakeshop case pending before the US Supreme Court. The court decided the case June 4, ruling that the Colorado Civil Rights Commission’s actions in the case violated the cake baker’s 1st Amendment rights under the free exercise clause. The other case I discussed in that blog post, National Institute of Family and Life Advocates v. Becerra, hasn’t been decided yet, although you can listen to the March 20th oral arguments.
For a full rehash of the facts of the case you can see my January blog post. You can also see the court’s full opinion in the case here. For librarians, the major “take away” from this case is that the court ruled (narrowly) for the cake baker, Jack Phillips, largely because of a perceived hostility to his “sincere religious beliefs.” (Howe, 2018) The court didn’t address the free speech issue specifically in the case.
The court reiterated that the right to free exercise of religion is not absolute and can be limited by neutral laws, and seemingly left open the possibility that a similar case might be decided differently. However, in this case Justice Kennedy (writing for the majority), found that the proceedings against Phillips was “tainted by hostility to religion.” (Howe, 2018)
Meeting room policies
Why does this matter to libraries? It reiterates again that decisions regarding religious groups – and speech, although the court didn’t address it here – must be content neutral. The issue here for the court was (apparently) not so much the underlying law, it was that the proceedings involved in this case showed hostility to Phillips’ specific religious viewpoint.
In his concurring opinion, Justice Alito pointed out that the same commission “demonstrated its unconstitutional lack of neutrality not merely by the improvident words of some of its members, but even more decisively by ruling in other cases in favor of bakers who refused to bake cakes for religious people who requested them as statements of opposition to homosexual conduct or same-sex partnerships.” (George, 2018)
Many libraries have meeting rooms or public spaces that can be used for speakers and events, and this case reinforces the importance of making content neutral decisions regarding who can use these spaces and what they can use them for. Decisions that are not content (or viewpoint) neutral risk legal problems for the library. This also highlights the importance of a clearly defined meeting room and events policy, both to guide internal decision making and to ensure staff have clear and specific viewpoint neutral policy-based reasons if they choose to deny a request to use library space.
This, of course, doesn’t even touch on the intellectual freedom aspects of library meeting room policies. As demonstrated by the President’s Program at ALA Midwinter, the issue of library neutrality is not an easy one, and reasonable professionals can disagree about what libraries should do when faced with difficult questions about use of library space. However, this case reminds us that sometimes professional ideals are not the only consideration. At least for public libraries and libraries at public universities, librarians must also keep in mind constitutional principles regarding free speech and freedom of religion.
Library Bill of Rights
As this case demonstrates, the law requires us to be content neutral, even when that is difficult. However, we can apply neutral time, place and manner restrictions on speech and meeting room use (see the Cox v. New Hampshire case). This is where the Library Bill of Rights interpretation regarding meeting rooms language regarding “time, place, or manner of use” presumably comes from.
The interpretation states that “if meeting rooms in libraries supported by public funds are made available to the general public for non-library sponsored events, the library may not exclude any group based on the subject matter to be discussed or based on the ideas that the group advocates.” (ALA, 1991)
However, it is important to remember that this language is not arbitrary – decisions made based on the content of a speech or an event might be unconstitutional under US Supreme Court case law.
While the Becerra case hasn’t been decided yet, it has been argued, and Amy Howe believes the argument indicates a skepticism toward the abortion speech law, which required crisis centers in California to provide patients with specific information, including (in some cases) regarding availability of abortions.
In oral arguments, Alito raised the issue of neutrality again, asking “‘if you have a law that’s neutral on its face,’ but then contains ‘a lot of crazy exceptions’…’isn’t it possible to infer intentional discrimination?’”(Howe, 2018)
Kagan, generally considered a more liberal justice, seemed to share some of Alito’s concerns, according to Howe. (Howe, 2018)
The requirement that decisions on 1st Amendment issues be content neutral is well established and, given the Masterpiece cake holding and the oral arguments in the Becerra case, doesn’t seem likely to change anytime soon. Therefore, libraries need to remember that issues of library use aren’t just about our principles – they also involve constitutional rights.
American Library Association. (1991) Meeting rooms: An interpretation of the Library Bill of Rights. Retrieved June 5, 2018 at http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms
George, R. (2018) Colorado Made the Masterpiece Case Easy for the Court. Retrieved June 5, 2018 at https://www.nytimes.com/2018/06/04/opinion/supreme-court-masterpiece-cake-colorado.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region®ion=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region
Howe, A. (2018) Opinion analysis: Court rules (narrowly) for baker in same-sex-wedding-cake case. Retrieved June 5, 2018 at http://www.scotusblog.com/2018/06/opinion-analysis-court-rules-narrowly-for-baker-in-same-sex-wedding-cake-case/
Howe, A. (2018) Argument analysis: Justices skeptical of abortion speech law. Retrieved June 5, 2018 at http://www.scotusblog.com/2018/03/argument-analysis-justices-skeptical-abortion-speech-law/
Lisa Hoover is a Public Services Librarian at Clarkson University and an Adjunct Professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about 1st Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules and Pandora and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.