Leading us out of the cultural divide

Can court outreach inspire the public to dialogue with opposing factions on contentious social issues? It did just that with a group of judges and lawyers in Sacramento. They met as part of a court outreach to address one of the country's most divisive issues: the conflict between the exercise of religious liberty and the guarantee of civil rights to the LGBTQ community. This group, however, was no ordinary group. Some of the judges and lawyers who participated live this conflict. Some are members of the LGBTQ community, others are members of religious traditions and faith-based bar associations, and some are both. Some of them, or their faiths, were directly involved in the marriage equality litigation on opposite sides. Yet despite their differences, they met to establish relationships, gain understanding, and begin a dialogue -- a civil dialogue -- about how to bridge this societal rift. Their effort was a successful first step and a model for the country to follow.

The meeting grew out of this year's annual Sacramento Court-Clergy Conference, an outreach effort sponsored by the Sacramento County Superior Court, the California Judges Foundation, and Brigham Young University. Previous conference speakers set the foundation for the unique meeting. At the 2015 conference, Elder Dallin H. Oaks, a member of the Church of Jesus Christ of Latter-day Saints' governing Quorum of the Twelve Apostles and a former justice on the Utah Supreme Court, proposed ways individuals and institutions could foster mutual respect to reach compromises that protect both religious exercise rights and individual civil rights. He suggested viewing church and state as separated by a "curtain" instead of wall. A curtain defines boundaries but allows passage of light and mutual support from one side to another. He counseled both sides of the conflict to seek a balance, not total victory, on contentious issues. He urged religionists not to seek a veto over all nondiscrimination laws that offend their religion, and he asked non-believers to respect the constitutional rights of religious practice that grant religions an honorable place in American public life.

At the 2017 conference, constitutional law scholars Erwin Chemerinsky, dean of the UC Berkeley School of Law, and John Eastman, professor and former dean of the Chapman University, Fowler School of Law, debated the conflict between religious liberty and civil rights, and they discussed its current manifestation in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, now pending before the U.S. Supreme Court. In that case, a baker contends a public accommodations statute that prohibits commercial discrimination on the basis of sexual orientation violated his rights to speech and religious practice by sanctioning him for not designing and selling a custom wedding cake for a gay couple's wedding celebration. The baker opposes same-sex marriage on religious grounds, and he claims requiring him to design a wedding cake for a same-sex wedding celebration compels him to engage in expressive conduct to celebrate a ceremony with which he disagrees. Chemerinsky and Eastman civilly but earnestly debated the argument's merits and emphasized the interests at stake. Eastman contended the public accommodation statute compelled the baker to engage in certain speech at the risk of losing his livelihood. Chemerinsky claimed if the high court viewed baking a cake as expressive activity, it would end anti-discrimination law.

Sensing the likely public outcry and division no matter how the high court rules in Masterpiece Cakeshop, but also having witnessed the issues debated with respect and decorum, Judge James M. Mize of the Sacramento County Superior Court and the originator of the Sacramento Court-Clergy Conference, and Justice George W. Nicholson of the 3rd District Court of Appeal, convened a small group of distinguished judges and lawyers with vested, private interests in the conflict to begin discussing how to move past the divisiveness. The group included leaders of California's new organization of LGBTQ judges, leaders of Sacramento's venerable LGBTQ bar association, and leaders of local faith-based bar associations, including Catholics, Jews, Muslims and Mormons. The group also included African-American justices, a retired appellate justice who is now an ordained Episcopal priest, and an ordained Protestant minister who is now a trial judge. To focus on the gathering's common goal, Justice Nicholson named the group "the Liberty Caucus."

Professor Alan E. Brownstein, emeritus professor at UC Davis School of Law, began the discussion by explaining the issues raised in Masterpiece Cakeshop and the possible ramifications of the different rulings the Supreme Court could issue. His presentation and the ensuing discussion eliminated superficial, knee-jerk understandings of the case and the conflict at large. It was not a case of a homophobe fighting off an attempt by conspiratorial gays to interfere with his religious practice. The baker regularly sold off-the-shelf goods to LGBTQ community members and offered to sell some to the couple who complained. Similarly, the LGBTQ participants in the meeting made clear their attempts to gain marriage and civil equality had never intended to force people or churches to change their religious beliefs or practices. They sought only a civil right.

Nevertheless, the meeting participants recognized the facts and issues in Masterpiece Cakeshop brought the parties' legitimate interests into conflict, and any ruling could exacerbate the existing public divisions. The participants discussed openly whether the Supreme Court's decision could have what they called a "soft landing" that mitigated its emotional impact. Some feared it could not. One judge said the baker's arguments reminded him of religious justifications made in favor of racial discrimination in the Jim Crow South. He feared people would move to their respective corners to continue arguing. Another feared the case had reached the Supreme Court too soon to give society time to accept the marriage equality approved in Obergefell v. Hodges, and she was not sure people could discuss whatever decision is made in a way that was not emotionally charged. She believed a decision in favor of the baker would be seen in the LGBTQ community as a "shot across the bow." Another participant feared a longer-term harm. He believed the Supreme Court as an institution would suffer as a result of its decision, as the majority would be deemed partisan to a particular religious point of view. That would not bode well for the country.

Professor Brownstein recognized these difficulties, but he proposed both sides of the dispute could make efforts to help the public accept the Supreme Court's ultimate decision. He believed whether the case aggravated the existing divisions depended in part on how members and leaders of traditional religious communities, the LGBTQ community, and the organized bar reacted to the decision. If the baker loses his constitutional claim, "the decision," Professor Brownstein counseled, "should not be interpreted to mean his claims of conscience are devalued and unworthy of consideration. It should be clear a court's holding that an interest is not constitutionally protected does not mean the interest is unimportant." On the other hand, if the baker wins a limited victory, "it would be helpful, "Professor Brownstein said, "If both sides of the dispute avoided overstating the decision's meaning and consequences. Much will depend on the court's reasoning and language. But a holding narrowly limited to uniquely artistic designs that sharply distinguishes the overwhelming majority of goods and services from its coverage may control a few highly publicized cases, but it will leave a great many conflicts between religious liberty and the liberty and equality rights of the LGBTQ community completely untouched." In his opinion, "The court would likely be very clear that in the overwhelming majority of cases, public accommodations have to be open to all."

Other participants suggested ways to give the Masterpiece Cakeshop decision a soft landing. One judge suggested viewing the court's ultimate decision with a long-term perspective. He relied on Elder Oak's metaphor of a "curtain of separation," which he believes gives one hope that the court's ultimate decision and the law in this area need not be seen as rigid. If Masterpiece Cakeshop was not going to be the equivalent of a Brown v. Board of Education, he believed the mores of society will evolve, and at some point the court will issue its Brown on this conflict. Another judge suggested religious discourse could assist in helping people understand that the results of the case do not mean we cannot understand each other and respect each other's views. A lawyer from a religious bar association stated that while certain fundamental religious beliefs will not change, tolerance for diversity and opportunities for dialogue can. Differences will always exist, but those differences can be celebrated, shared, and appreciated.

The challenge, another lawyer indicated, would be taking the messages that developed from the dialogue in this and future meetings of the caucus, and multiplying them. Justice Nicholson concluded the meeting along the same thought, and suggested court-clergy outreach, such as the court-clergy conferences being held in Sacramento and other counties in the state, was one way to spread this type of good-faith dialogue. He said, "The courts are really the only institution other than the clergy that has some potential of addressing the division in the country, but we are also in a very precarious position because we cannot allow ourselves to be categorized as just another political institution taking sides. But if we can conduct this type of dialogue among ourselves and spread our umbrella to a larger number of judges and lawyers, starting in California with the goal of spreading it throughout the country, and if we can insulate the judiciary and the lawyers working with us, ... I think we can achieve something and mitigate our own pessimism. And if we do it well, and with vision and inspiration, we will figure out a way to help our publics do a better job of trying to do what we are trying to do with one another, arm in arm, heart in heart."