Masterpiece Cakeshop: A Romer for Religious Objectors?

32 Pages Posted: 10 Sep 2018

See all articles by Thomas C. Berg

Thomas C. Berg

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law

Date Written: 2018


In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case of the baker who refused to design a custom cake for a same-sex wedding, the Supreme Court dodged many broader issues the case posed—instead ruling that the state commission adjudicating the case had displayed impermissible hostility against the baker’s religious beliefs. The question now, is whether Masterpiece will be confined narrowly to cases of hostility or whether it presages broader protection for religious dissenters whose beliefs clash with sexual-orientation nondiscrimination laws.

Such a progression in a civil right, from narrow holdings condemning government hostility in a particular instance to broader recognition of a liberty, has appeared before—in gay-rights rulings. The Court’s first such ruling, Romer v. Evans (1996), held that Colorado’s Amendment 2 was so broad in barring gay-rights legal claims that it showed a “bare desire to harm” the state’s gay and lesbian persons. The opinion avoided deciding whether sexual-orientation discrimination was a suspect classification triggering heightened equal protection scrutiny. The Court continued to avoid that question, and rely on a finding of animus, in United States v. Windsor (2013). Only when the Court finally invalidated state denials of same-sex civil marriage in 2015 did it change its focus from government’s anti-gay animus to same-sex couples’ fundamental right to marry.

This essay examines Masterpiece Cakeshop and the unresolved religious-liberty questions through the lens of the similarities with Romer (and potentially with the later, more-expansive gay-rights rulings). Part I describes the resemblances between the two rulings, among other things that in both, animus or hostility serves as a “minimalist” holding that avoided committing to broad implications for future cases. But that modesty comes with a cost: To find animus, the Court must denounce the decision-makers in the immediate case as especially unjustified, even malicious, and that conclusion can cause equal or greater anger compared with broader holdings, such as declaring a suspect classification or fundamental right. In the final parallel with Romer, I sketch how the finding of unequal, hostile treatment in Masterpiece might provide the basis for further protection of religious traditionalists’ right to decline to facilitate same-sex marriages, at least in an appropriately limited set of circumstances.

I then turn to general parallels between gay-rights and religious-freedom claims—parallels that call for sympathizing with and protecting both sides. Those parallels depend less on the improper motives or attitudes (animus/hostility) of the regulators, and more on the seriousness of the interests and predicaments of those harmed by government action (same-sex couples denied marriage rights, religious objectors penalized for following their beliefs). Developing sympathy for their respective predicaments, I argue, is more likely to calm our society’s serious problem of negative polarization—while condemning others for animus is more likely to aggravate such polarization. That in turn, I suggest, makes an argument for relying on heightened-scrutiny rationales in these cases, rather than findings of animus or hostility.

Keywords: LGBT rights, religious liberty, religious accommodation, same-sex marriage, free exercise of religion, neutrality toward religion, equal protection, sexual-orientation discrimination, animus, suspect classification, heightened scrutiny, polarization, negative polarization, Masterpiece Cakeshop, Rome

Suggested Citation

Berg, Thomas Charles, Masterpiece Cakeshop: A Romer for Religious Objectors? (2018). 2017 Cato Supreme Court Review 139; U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-16. Available at SSRN:

Thomas Charles Berg (Contact Author)

University of St. Thomas, St. Paul/Minneapolis, MN - School of Law ( email )

1000 La Salle Avenue
Mail # MSL400
Minneapolis, MN 55403-2015
United States

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