The Supreme Court’s Gay Rights-Religious Liberty Contortions

Abstract

The Supreme Court has heard several cases in which conservative religious claimants objected to antidiscrimination laws requiring them to provide services to LGBT people. Each time it has disposed of the case in a way that let the religious claimant win, but established no clear doctrine. The Court misconstrued the record or misrepresented the challenged state law or both, and invented new doctrinal rules so extreme or obscure that they cannot possibly be applied consistently by lower courts. The pattern appears in four cases: Boy Scouts of America v. Dale, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. Philadelphia, and 303 Creative v. Elenis. A fifth, Scardina v. Masterpiece, seems likely to repeat it. I describe the pattern and propose an explanation, arising from two difficulties characteristic of religious exemption cases: courts must worry about opening the floodgates to so many claims that the underlying statute’s purposes will be defeated, and courts have no legal basis for determining what is or is not a compelling interest.

Keywords: religious liberty, gay rights, Boy Scouts of America v. Dale, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Fulton v. Philadelphia, 303 Creative v. Elenis, Scardina v. Masterpiece

JEL Classification: K10, K30