Abstract
Recent U.S. Supreme Court cases present an opportunity to apply a new form of analysis to discrimination claims. In 2018’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and 2021’s Fulton v. City of Philadelphia, there is a party complaining about discrimination on each side of the dispute. In both cases, one side (respondent) claims that the other (petitioner) is discriminating on the basis of sexual orientation, while the other side (petitioner) claims that subjecting petitioner to the law prohibiting sexual orientation discrimination itself discriminates on the basis of religion. With discrimination claims coming from both directions, this Article/Essay performs what it calls “mirror-image analysis” to better understand how the Court thinks about the issues it faces in Free Exercise cases. Mirror-image analysis takes a definition that the Court applies to one side of the dispute, whether it is the definition of discrimination or coercion, and considers what the other side’s claim would look like if it deployed similarly capacious definitions of both terms. The Article/Essay uses hypothetical cases, some quite provocative, to help clarify the nature of the Court’s approach to Free Exercise. It concludes that because the religions at issue in both Masterpiece Cakeshop and Fulton were mainstream Christian faiths, it takes a mirror to appreciate how extreme the Court’s analysis of religious freedom has become.
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