Masterpiece Cakeshop and the Future of Religious Freedom

29 Pages Posted: 11 Dec 2018

See all articles by Mark Movsesian

Mark Movsesian

St. John's University School of Law

Date Written: November 19, 2018

Abstract

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. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

Keywords: Religious Freedom, Anti-Discrimination, Supreme Court, Religion in America

JEL Classification: K30

Suggested Citation

Movsesian, Mark, Masterpiece Cakeshop and the Future of Religious Freedom (November 19, 2018). Harvard Journal of Law and Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3287325

Mark Movsesian (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-5650 (Phone)
718-990-2199 (Fax)

HOME PAGE: http://www.stjohns.edu/academics/graduate/law/faculty/profiles/Movsesian

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