Constitutional Law and the Culture Wars: When Religious Liberty and the Law Conflict, Which Should Prevail?

Abstract

Although the Supreme Court ultimately decided to pass on the hard questions posed by Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), the case offers a prime opportunity to explore a type of clash between religious liberty and the law that has fueled a great deal of public debate in recent years. The religious liberty claim in the case epitomizes what Yale Law Professors Douglas NeJaime and Reva Siegel have called “complicity-based conscience claims” – claims based on “religious objections to being made complicit in the assertedly sinful conduct of others.” To help answer when, if ever, today’s complicity-based conscience claims should take precedence over conflicting law, this Essay closely examines the religious liberty claim raised, but not decided, in Masterpiece Cakeshop. Part I lays the groundwork for that examination with a brief account of the Supreme Court’s approach to the Free Exercise Clause over the years. In particular, after discussing a 1990 Supreme Court decision, Employment Division v. Smith, that interpreted the Clause in a manner that rendered it much less protective of religious liberty than it had been under the Court’s prior interpretation of the Clause, I call attention to several post-1990 developments that have diminished Smith’s practical significance and breathed new life into the Court’s pre-Smith approach. Part II uses Phillips’s free exercise claim in Masterpiece Cakeshop to illustrate the shortcomings of complicity-based conscience claims when analyzed from the perspective of the Court’s approach to claims for free exercise exemptions prior to Smith. I maintain that Phillips’s claim should fail under the Court’s pre-Smith approach, but I add a caveat: The Court appears likely to revisit its decision in Smith in the not too distant future. If it does revisit Smith, and if it decides to overrule it, there is reason to believe that the Court may adopt a more lenient approach to claims for free exercise exemptions than its pre-Smith approach. The Essay concludes in Part III by turning briefly to a question not implicated by the facts of Masterpiece Cakeshop itself but readily presented by a variation on those facts: If a legislature decides to create a religious exemption, is the Free Exercise Clause’s companion provision in the First Amendment – the Establishment Clause – a significant constraint?