Revisiting Masterpiece Cakeshop -- Free Speech and the First Amendment: Can Political Correctness Be Compelled?

Abstract

This Article questions whether religious objectors, who refuse to provide their services in facilitating a same-sex marriage, are discriminating on the basis of sexual orientation or refusing to adopt a politically correct, albeit legal, view of marriage. If the latter, then, compelling political correctness can have a boomerang effect, creating more LGBTQ discrimination. Given this administration’s strong support for religious freedom and two new conservative justices on the Supreme Court, a legislative religious exemption in public accommodation laws may be safer for LGBTQ rights than risking a Supreme Court ruling constitutionally enshrining a religious right to discriminate.

After the Introduction section, Part II of this Article will summarize the central meaning of the First Amendment discussed in a previous article. Part III will describe the history and meaning of the political correctness movement. Part IV will discuss microaggression, a concept born out of the political correctness movement. In exploring the question of compelling political correctness, Part V will discuss the likely difficulties in litigating microaggression-related claims. The New York City Human Rights Law (“NYCHRL”), an existing example of compelled political correctness, will be discussed in Part VI. The NYCHRL includes proper gender usage under the umbrella of public accommodation gender discrimination. Part VII revisits the Masterpiece Cakeshop conflict between anti-discrimination protection for same-sex marriage rights and religious beliefs, suggesting a legislative compromise. In conclusion, Part VIII will make the case for compromise.

Keywords: Supreme Court, LGBT, LGBTQ, gay, lesbian, homosexual, First Amendment, political correctness, politically correct, sexual orientation, marriage, same-sex marriage, discrimination, religious objector, religious objection, religious freedom, religious exemption, microaggression Masterpiece Cakeshop