Academic journal article Brigham Young University Law Review

The Broader Implications of Masterpiece Cakeshop

Academic journal article Brigham Young University Law Review

The Broader Implications of Masterpiece Cakeshop

Article excerpt

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1 the Supreme Court held that on the facts there presented, the Free Exercise Clause protected a wedding-cake baker who conscientiously objected to making a cake for a same-sex wedding. The decision has been widely described as a very narrow ruling on odd facts.2 My central claim in this Article is that the opinion has much broader implications than have been recognized.

I do not mean merely that a narrow judicial statement of a new right may evolve over time into a much broader right, although that is certainly true.3 And I do not mean merely that Justice Kavanaugh is likely to be more sympathetic to the free exercise of religion, and less sympathetic to gay rights, than Justice Kennedy would have been, although that is probably also true. I mean that the Masterpiece opinion, as written, combined with a bit of savvy lawyering on the part of those representing conscientious objectors, logically leads to a general protection for conscientious objectors, at least in religiously important contexts such as weddings.

Since same-sex marriage first became a prominent public issue in 2004, I have advocated for marriage equality with religious exemptions - full legal equality for same-sex marriages, with exemptions that protect non-profit religious organizations from having to celebrate or recognize those marriages, and with religious exemptions for very small for-profit businesses from having to assist with the wedding or its celebration so long as other providers of the same goods or services are readily available.4 I have never doubted that the conscientious objectors who claim this exemption are discriminating on the basis of sexual orientation, but I have argued that they should have an affirmative defense to protect the free exercise of religion. The solution to this conflict is to protect the rights of each side - the right of both same-sex couples and conscientious objectors to live their own lives by their own deepest values and in accord with their deeply felt identity. As has been explained elsewhere, sexual minorities and religious minorities make fundamentally similar claims on the larger society.5

Government should not interfere with sexual orientation, and it should not interfere with the exercise of religion, without the most compelling reasons.

The Masterpiece opinion does not go so far, but it is consistent with this view. The Court set the right tone, insisting on the need to respect the rights and dignity of both sides. "[G]ay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. . . . The exercise of their freedom on terms equal to others must be given great weight and respect by the courts."6 "At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. . . . [T]he Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips' religious beliefs."7

The Colorado Civil Rights Commission and the Colorado Court of Appeals had failed to treat the baker's religious commitments with either neutrality or respect, and their obvious bias violated the Free Exercise Clause.8 This bias was manifested in hostile comments and in unequal treatment of customers and bakers on opposite sides of the moral debate over same-sex marriage. Savvy officials can suppress their hostile comments. But savvy conscientious objectors can smoke out unequal treatment by sending testers to request goods and services that retailers who support same-sex marriage are likely to refuse. A state that protects these liberal retailers while penalizing religious conscientious objectors violates the Free Exercise Clause under Masterpiece, and on reasonable readings of the Court's recent free-exercise precedents.

I. The Doctrinal Background of the Free Exercise Clause

Deeper analysis of Masterpiece has to begin in 1990, with Employment Division v. …

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