Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond

La Liberté d'Expression en Droit Comparé [Freedom of Expression in Comparative Law] (Gilles J. Guglielmi, ed.; Les Editions Panthéon-Assas, 2020, Forthcoming)

Indiana Legal Studies Research Paper No. 408

32 Pages Posted: 11 Jul 2019

See all articles by Daniel O. Conkle

Daniel O. Conkle

Indiana University Maurer School of Law

Date Written: 2019

Abstract

Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments.

In this Essay, I present and defend three proposals for resolving the wedding vendor controversy and for clarifying and enhancing the law of religious freedom. First, the Supreme Court should reject the wedding vendors’ compelled speech argument even on the assumption that the vendors’ conduct is expressive. Second, the Court should repudiate the restrictive free exercise doctrine of Employment Division v. Smith, which has not settled the law but which instead has been undetermined by ill-defined exceptions and by congressional and state law developments. And third, applying its earlier, pre-Smith interpretation of the Free Exercise Clause, the Court should find strict scrutiny satisfied and therefore should reject the vendors’ free exercise claims. My second and third proposals, taken together, would permit the wedding vendor controversy to be framed and resolved transparently, as the conflict of competing values that it is: equality on the one hand, religious freedom on the other.

Keywords: Constitutional Law, Constitutional Interpretation, First Amendment, Free Speech Clause, Free Exercise Clause, Religious Freedom, Religious Freedom Restoration Act, Equality, Discrimination, Animus, Sexual Orientation, Same-Sex Marriage, Masterpiece Cakeshop, Employment Division v. Smith

JEL Classification: K00, K10, K19, K30, K39

Suggested Citation

Conkle, Daniel O., Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond (2019). La Liberté d'Expression en Droit Comparé [Freedom of Expression in Comparative Law] (Gilles J. Guglielmi, ed.; Les Editions Panthéon-Assas, 2020, Forthcoming); Indiana Legal Studies Research Paper No. 408. Available at SSRN: https://ssrn.com/abstract=3417932

Daniel O. Conkle (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
(812) 855-4331 (Phone)
(812) 855-0555 (Fax)

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