Academic journal article Harvard Journal of Law & Public Policy

Masterpiece Cakeshop and the Future of Religious Freedom

Academic journal article Harvard Journal of Law & Public Policy

Masterpiece Cakeshop and the Future of Religious Freedom

Article excerpt

INTRODUCTION

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. (1) Like most such disputes, the case involved a small business that declined, because of the owner's religious convictions, to provide a service for a same-sex wedding--in this case, Colorado cake designer Jack Phillips's convictions against designing and baking a cake for a gay couple, Charlie Craig and Dave Mullins. (2) In most of these cases, courts have been unwilling to exempt businesses from the anti-discrimination laws on religious grounds and have ruled in favor of the customers. One might have thought Jack Phillips would lose in Masterpiece Cakeshop as well. Indeed, many observers were surprised that the Court had granted cert in his case at all. (3)

Somewhat surprisingly, though, the Supreme Court ruled in his favor, on the basis of an argument few observers had credited before the Court heard the case. (4) In a 7-2 opinion by Justice Kennedy, the Court held that, in deciding that Phillips's refusal to create a cake for a same-sex wedding violated the state's anti-discrimination laws, the Colorado Civil Rights Commission had violated Phillips's free exercise rights. (5) The Commission, the Court wrote, had failed to treat Phillips's religious convictions in a neutral and respectful way. (6) At least two of the commissioners had publicly disparaged Phillips's religious convictions and none of the other commissioners present had objected. (7) Moreover, the Commission had acted inconsistently in at least three prior cases involving other bakers who had refused, on grounds of conscience, to create cakes with anti-gay marriage sentiments. The Commission had ruled that those bakers had acted lawfully in refusing service. This inconsistency suggested that the state had not been neutral with respect to the substance of Phillips's convictions. Punishing Phillips for refusing, on grounds of conscience, to create a pro-gay marriage cake, while failing to punish other bakers who declined, on grounds of conscience, to create antigay marriage cakes, suggested that the state simply disfavored the content of Phillips's convictions. (8)

Because the Commission had failed to treat Phillips's religious convictions in a neutral and respectful way, the Court held, its action against him violated the Free Exercise Clause of the U.S. Constitution. (9) The Court stressed that future cases, in which state authorities had not demonstrated overt hostility to a claimant's religious convictions, might well reach a different result--a fact that Justice Kagan stressed in a concurring opinion. (10) Masterpiece Cakeshop thus does relatively little to resolve the conflict between anti-discrimination laws and the right of business owners to decline, out of sincere religious conviction, to provide services in connection with same-sex weddings. (11)

Masterpiece Cakeshop is nonetheless important for what it reveals about deeper cultural and political trends, all related, that will affect the future course of the law. Two cultural trends are important: religious polarization and an expanding concept of equality. Over the past two decades, American religion has become polarized between two groups, the Nones, who reject organized religion as authoritarian and hypocritical, especially with respect to sexuality, and the Traditionally Religious, who continue to adhere to organized religion and to traditional religious teachings, especially with respect to sexuality. (12) Each group views the other's values as threatening and incomprehensible. Neither is going away, and neither seems in a mind to compromise--including in commercial life. (13) This religious polarization has figured very prominently in the public's response to Masterpiece Cakeshop and similar controversies.

Masterpiece Cakeshop also reflects a second cultural trend, one that Alexis de Tocqueville--whose work runs like a red thread through our story--saw long ago: an expanding notion of equality. …

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