The Broader Implications of Masterpiece Cakeshop

40 Pages Posted: 11 Jun 2019 Last revised: 30 Jul 2019

See all articles by Douglas Laycock

Douglas Laycock

University of Virginia School of Law

Date Written: 2019

Abstract

Masterpiece Cakeshop has been widely described as a narrow decision on odd facts, with little precedential value. But the key facts can easily be replicated. In Masterpiece, a conscientious objector refused to make a cake for a same-sex wedding; other bakers refused to make cakes with offensive versions of conservative Christian teachings on same-sex marriage. The Colorado authorities predictably treated the two sets of cases in inconsistent ways, protecting the objectors who supported marriage equality and refusing to protect the objector who opposed it. We can expect this pattern to regularly repeat if conscientious objectors send out testers to request offensive religious versions of whatever good or service the conscientious objector is refusing to provide.

Efforts to distinguish the two sets of cases do not withstand analysis. One such effort manipulates the level of generality in obvious ways; another makes the false empirical claim that same-sex couples today are in a position analogous to that of African-Americans in the South in the mid-twentieth century. Data show this empirical claim to be not just false, but absurd.

The opinion in Masterpiece Cakeshop moves the Supreme Court much closer to a reading of its free-exercise precedents that would provide substantial protection for the free exercise of religion—a reading in which religious exemptions are required if any exceptions or gaps in coverage undermine the same state interest that is offered to justify regulation of religion. Better protection for free exercise is important not just in the high-profile culture-war cases, but in the many less controversial cases involving such matters as Sabbath observance, grooming rules, Amish buggies, and church programs to feed the homeless.

Keywords: religion, religious liberty, free exercise, same-sex marriage, gay marriage, marriage equality, generally applicable law, general applicability, Masterpiece Cakeshop, Employment Division v. Smith, Church of the Lukumi, Hialeah

Suggested Citation

Laycock, Douglas, The Broader Implications of Masterpiece Cakeshop (2019). Brigham Young University Law Review, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2019-35. Available at SSRN: https://ssrn.com/abstract=3389309

Douglas Laycock (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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