Doric Columns Are Not Falling: Wedding Cakes, the Ministerial Exception, and the Public-Private Distinction

Abstract

The center is holding. Our basic understanding of the public-private distinction — an understanding that underlies both the church-state and civil-rights settlements in America — remains intact. It remains intact despite being challenged in recent years by a series of novel arguments nurtured in the academy and deployed in both the courts and the public square. Some of those arguments would dramatically curtail religious accommodations, even for churches. Others would dramatically expand religious accommodations, most notably from civil rights laws in the commercial marketplace. And yet others would deliver a libertarian realignment that would render such marketplace accommodations unnecessary.

These far-reaching arguments have generated considerable anxiety among religious liberty advocates and within the civil rights community. In addition, commentators coming from both perspectives have raised alarm about other supposed "changes" and "emerging" developments that, in truth, are merely new applications of long-settled principles. Taken together, the truly radical arguments and the perceived-to-be-radical trends have contributed to a growing sense that fundamental protections — for religious liberty, equal citizenship, or both — are in jeopardy. However, as this Essay points out, the actual threat has been largely overstated. To date, arguments that would upset our settled understanding of the public-private distinction are most notable for their failure to convince judges, legislators, and the general public to depart from ingrained instincts about the contexts in which the government can and cannot demand adherence to nondiscrimination norms.

Keywords: Religious Accommodation, Civil Rights, Antidiscrimination Laws, Public Accommodations, Ministerial Exception, First Amendment, Same-Sex Marriage, Dignitary Harm

JEL Classification: K00