Balancing Religious Liberties and Anti-Discrimination Interests in the Public Employment Context: The Impact of Masterpiece Cakeshop and American Legion

Abstract

At the heart of national debate in recent years is the balance between religious liberty and anti-discrimination interests. The Supreme Court’s recent Free Speech and Establishment Clause decisions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) and American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019) push the pendulum in this debate towards greater protection of religious liberties, and signal the Court’s preference for context-specific tests for how the Establishment Clause will interact with the broader range of interests protected by the Free Exercise Clause. These cases are especially significant in the public employment context, where government employers must consider whether requested accommodations violate the Establishment Clause.

This Article explores and analyzes the dichotomy of paradigms that has led Supreme Court jurisprudence to its current path, including the Court signaling its preference for context-specific Establishment Clause tests. This Article then proposes a context-specific test for public employment law that balances the magnitude and likelihood of third-party harm, substantiality of burden to religious liberty, and availability or prevalence of secular accommodations. This test seeks to establish an equitable balance between protection of religious liberties and anti-discrimination interests. It does so by providing room for factual inquiry and context-specific value judgments, while still allowing for a workable framework and sufficiently predictable results.

Keywords: Employment Law, Public Employment, Government Employment, Religious Freedom, Anti-Discrimination, Religious Freedom Restoration Act, Free Exercise, Establishment, Constitutional Law, Religious Liberty, Title VII, United States Supreme Court