Masterpiece Cakeshop Research Articles

Liberalism versus Liberalism: An Analysis of Muslim-American Amicus Curiae Arguments Concerning Complicity-Based Conscience Claims

AbstractIn 2015, Douglas NeJaime and Reva Siegel identified complicity-based conscience claims as a subcategory of religious liberty claims, which feature objections to generally applicable laws based on religious convictions that harm third parties. Here, we observe that Muslim-Americans have filed or joined amicus curiae briefs in support of litigants on both sides of the recent complicity-based conscience cases of Masterpiece Cakeshop v. Colorado (2018), Bostock v. Clayton County (2020), and Fulton v. City of Philadelphia (2021). This divergence of legal views within the Muslim-American community points to a broader rift in society generally toward issues involving the navigation of identity and faith in the context of American liberalism. In this article, we show that opposing arguments by Muslim-Americans in these complicity-based conscience cases presuppose two different conceptions of liberalism: (1) liberalism as the pursuit of broad religious, cultural, and value pluralism (modus vivendi), and (2) liberalism as the pursuit of social cohesion, assimilation, and fraternité among diverse constituencies (vivre ensemble). Muslim-Americans who advance a modus vivendi vision of liberalism base their arguments mainly on the view that Islam and other minority religions involve specific beliefs, doctrines, and moral injunctions regarding, inter alia, rules of personal conduct in society that deserve distinctive legal protections. Muslim-Americans who support a vivre ensemble conception of liberalism prioritize the uniform enforcement of civil rights laws over religion-based objections and, in doing so, seek an overlapping consensus between their beliefs and prevailing conceptions of expansive civil liberties.

Narrow and Shallow Judicial Decisions of U.S. Supreme Court－Values of the Case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

Narrow and Shallow Judicial Decisions of U.S. Supreme Court－Values of the Case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

Wedding Crashers: an Epistemological Model for When Refusal to Provide Service to Protected Groups Is Not Wrongful Discrimination

Abstract The question of the relation between wrongful discrimination and the freedom of conscience and religion has been the subject of many debates over the past decade and has occupied both courts and the public. The most well-known legal case in that regard is likely Masterpiece Cakeshop, in which a Colorado bakery owner refused to bake a wedding cake for a homosexual couple and was sued for violating the State’s Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet another Colorado case, 303 Creative llc v. Elenis, in which a website designer wanted to post a message saying she will not design websites for same-sex weddings. The purpose of our article is to point to a significant distinction between a refusal to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal to serve them because such service requires the providers to engage in activities or projects to which they deeply oppose. We think the latter case, sometimes, might not at all be discrimination. Importantly, we distinguish between a deep objection to the content of the service or product requested and a rejection of the client because of her characteristics. How can a supplier prove that his or her refusal to serve a client belonging to a “protected class” is based on the content of the product or service requested and not on the client’s characteristics? We formulate a two-prong test that courts in the US and UK have implicitly adopted. We ask, first, whether the supplier would refuse the same service to a client not belonging to the protected class, and second, whether the supplier would serve the same client (belonging to a protected class) with other products and services. If the answer to both questions is positive, then the supplier’s refusal is not wrongful discrimination because it shows an objection to the product or service requested and not a rejection of the client. In practice, this test is not always easy to apply. We therefore developed an epistemological model to substantiate the conditions that may help providers persuade the courts that their refusal to serve a client stems from the content of the request, not from the client’s identity.

New frontiers of religious freedom? LGBTQ rights versus religious conscience

ABSTRACT One frontier of public deliberation on religious freedom involves the clash of religious conscience with government rules against discrimination. As American courts consider issues pitting religious believers against other groups, especially LGBTQ citizens, the public is deeply divided. A paradigmatic case has been the Masterpiece Cakeshop litigation, testing whether a Christian baker could refuse to produce a wedding cake for a same-sex couple given his religious objections. As that case continues and similar confrontations proliferate, the First Amendment’s ‘free exercise’ clause produces new dilemmas. Although public attitudes seldom influence judicial decisions directly, in the long run American courts may well ‘follow the election returns’. This contribution considers public assessments of the importance of religious liberty and then examines attitudes on the Masterpiece controversy, using data from the Democracy Fund’s Voter Survey and the 2016 and 2020 American National Election Studies (ANES). We find that religious factors play a major role in determining citizen opinion, as the public reacts very much along ‘culture wars’ lines. But personal attitudes toward LGBTQ citizens also have a major direct impact on views about ‘conscience exemptions’.

Obergefell, Masterpiece Cakeshop, Fulton, and public–private partnerships: Unleashing v. harnessing “Armies of Compassion” 2.0?

AbstractFulton v. City of Philadelphia presented a by‐now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court's 9‐0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court‐watchers, Chief Justice Roberts's opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public–private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising 20 years ago over the faith‐based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination. It highlights how, in doing so, they enlisted or rejected analogies between race and sexual orientation discrimination—and between objections to interracial marriage and same‐sex marriage—that were powerful, pervasive, and contested in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission but scarcely featured in Roberts' Fulton opinion.

Marital Cakes and Conscientious Promises

Abstract The U.S. Supreme Court has recently been tasked with determining—both metaphorically and literally—whether in matters of marriage equality and religious freedom, those within society can have their cake and eat it too. This came to the fore in Masterpiece Cakeshop (2018). In most of scholarship which has followed, the respective parties’ rights in this case are parsed in terms of rights to religious expression and free speech (on the one hand), and a statutory right to non-discrimination (on the other). By approaching this matter through a primarily philosophical (rather than legal) lens, I aim to present a new perspective. Where cases involve same-sex marriage, it is argued that both sides are predicated upon religious or conscientious convictions. This is established through a philosophical argument, which examines the nature of the marital promise to love and seeks to demonstrate how this promise entails a characteristically religious sort of belief.

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

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?

The Overlooked Import of Masterpiece Cakeshop

The Supreme Court’s 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is widely construed as a narrowly tailored opinion with minimal import for the Court’s Free Exercise Clause jurisprudence. This paper submits that in fact, the opinion establishes two largely overlooked but significant principles that must guide future litigation relating to the Free Exercise Clause. It is argued that these components of the Court’s analysis are central to its holding and therefore carry the full weight of stare decisis. The first relates specifically to cases in which free exercise rights collide with the civil rights of LGBT persons, as in Masterpiece itself. The second applies more broadly across free exercise cases in which the purported claim is discrimination against religion in an adjudicatory context. Part I is broken into two sections. Part I (A) posits that Masterpiece elevated important dicta from the Court’s opinion in Obergefell v. Hodges to the full status of a “holding”. Part I (B) argues that Masterpiece implicitly rejected a powerful argument often advanced by LGBT litigants and activists in antidiscrimination cases. Part II explains that Masterpiece did more than simply reaffirm the Court’s opinion in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.

Free Exercise in the Mirror

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.

Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood

The most important lessons are taught by example. Children learn the fundamental values that guide them throughout their lives from the examples set by their parents, especially their mothers. Even before they understand a language, they learn by observing and imitating the actions of their parents. For almost fifty years Roe v Wade guaranteed pregnant women the freedom to determine whether to carry their pregnancy to term. The right to obtain a safe abortion prior to viability is the most significant and controversial aspect of this freedom. The Supreme Court is now poised to overturn what it previously described as the central holding of Roe and allow state governments to restrict abortions prior to viability. If this occurs, it will not be because of an erosion of precedential authority. Instead, it will result from decades of concerted efforts to pack the Supreme Court with Justices who reject the premise that the substantive due process guaranteed by the Fourteenth Amendment limits the power of the states. Whether the Fourteenth Amendment independently restricts the power of states to regulate abortion, however, is not the focus of this essay. Instead, this essay argues that parallel developments in First Amendment law not only reinforce the traditional justification for safeguarding a woman’s freedom to determine whether to continue the course of a pregnancy, but provides an independent justification for subjecting abortion restrictions to heightened judicial scrutiny. Over the past fifty years, Justices that would restrict the Fourteenth Amendment’s role in guaranteeing individual liberty have successfully argued for a greater role for the First Amendment. Government regulation of conduct, especially commercial conduct, previously not recognized as protected speech have increasingly been subject to heightened judicial scrutiny and, in some cases, categorical protection. This essay examines two recent cases, Masterpiece Cakeshop v. Colorado Civil Rights Comm. and Sorrell v. IMS Health, Inc., in which the Justices were required to consider whether the First Amendment and its protection of speech applied to conduct that would not traditionally have been considered speech. These cases highlight both the substantive and strategic value of (re)considering the myriad ways in which conduct is expressive or otherwise integral to expression and the nature of judicial review. When applied to abortion, this line of reasoning illuminates the expressive values at stake with pregnancy and childbirth; why abortion restrictions must be carefully scrutinized to ensure that they do in fact promote a legitimate interest in protecting the welfare of mother and child; and to prevent governing majorities from using childbirth to endorse and celebrate moral beliefs that are not shared by the pregnant woman and may be antithetical to her interests and the interests of a child.

Religious Exemptions Increase Discrimination toward Same-Sex Couples: Evidence from Masterpiece Cakeshop

In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple because of his religious beliefs. This article examines the behavioral effect of this decision in an experiment that measured discrimination toward same-sex couples from 1,155 wedding businesses shortly before and after Masterpiece. I find that Masterpiece significantly reduced the willingness to serve same-sex couples as compared with opposite-sex couples, even among previously willing vendors. Considering the variety of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination after Masterpiece to be between 61 percent and 85 percent. These results show that even a narrowly construed exemption can have a significant and robust, even if inadvertent, impact on a market and its customers. I discuss the implications of these results for research on Supreme Court effects on the public.

Let them eat cake? Contextualizing support for religious right to discriminate laws

AbstractShould businesses be allowed to deny services based on their strongly held religious beliefs? Despite the recent Supreme Court Case of Masterpiece Cakeshop v. Colorado, this question of the right to discriminate remains unanswered. Given the currently ambiguous legal area, it is important to understand whether the public supports these laws. The current study examines both general support for the law and under what conditions people support it. The service provided and the religion of the service provider were both manipulated while religiosity and system justification were examined as potential moderators. Service type was the only significant experimental predictor of support, with participants less supportive of the law when reading about a marriage certificate being denied due to religious reasons than a wedding cake and a wedding ceremony being denied. Religiosity, but not system justification, moderated the relationship between service type and support for the law.

A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemptions

What are the consequences of religious exemptions? And what are the normative implications of these consequences? These questions are currently at the center of a heated debate. Opponents argue that granting exemptions would extend LGBTQ discrimination. Proponents of religious exemptions argue that religious exemption would not expand discrimination against same-sex couples. The troubling aspect of this debate is that none of the parties rely on actual data. Particularly missing are data on the effects of exemptions granted in Supreme Court decisions, an issue that the Court has addressed repeatedly in recent years—and is set to do so once again this term, in Fulton v. City of Philadelphia. This Article intervenes in the debate based on the results of a large-scale field experiment that measured the effect of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) on same-sex couples in the wedding market. The field experiment revealed that Masterpiece reduced vendors’ willingness to provide wedding services to same-sex couples as compared with heterosexual couples, even for vendors that provided these services prior to the decision. Following Masterpiece, the odds that same-sex couples would experience discrimination are estimated between 61% and 85%. These results have several implications for the debate on religious exemptions. First, they discredit the argument that the effect of religious exemptions is negligible and that exemptions will not expand discrimination. Second, the results complicate the conventional portrait of religious objection as fixed and unyielding to change, showing that the demand for discrimination is elastic and socially constructed, even when coercion and sanctions are absent. Third, Masterpiece’s negative effects establish the pillar of the strict scrutiny doctrine of religious burdens, by showing that states have a compelling interest to enforce antidiscrimination law without exemptions to ensure access to public accommodations. Fourth, I advance an empirical approach to religion-equality conflicts that can guide legislatures that deliberate whether and how to enact religious exemptions from antidiscrimination laws. Finally, the troubling consequences of Masterpiece require the Supreme Court to proceed with great care as it sets to decide Fulton v. City of Philadelphia and any religion-equality conflict in the future. However the Court decides to resolve the constitutional issue at hand, it must take into account that even a deliberately narrow and case-specific exemption might have a significant negative impact on the market and its customers.

Religious Exemptions Increase Discrimination Towards Same-Sex Couples: Evidence from Masterpiece Cakeshop

In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple due to his religious beliefs. This article examines the behavioral effect of this decision in an experiment (N=1,155 businesses) that measured discrimination towards same-sex couples in the field of wedding services shortly before and after Masterpiece. I find that Masterpiece significantly reduced the agreement to provide services to same-sex couples as compared with heterosexual couples, even among vendors that provided this service before the decision. Considering the variety and number of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination post-Masterpiece between 61% and 85%. The effect is significantly more pronounced in religiously dense environments. These results discredit the frequently-made argument that religious exemptions will not expand discrimination. Instead, the Masterpiece experiment shows that even a narrowly construed exemption can have a significant and robust, even if inadvertent impact on a market and its customers. I discuss the implications of these results for the research on Supreme Court effects on the public.

Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause

One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity. In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom. The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.

Masterpiece Cakeshop and the Foundations of Free Speech and Toleration

Abstract What do Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, other leading cases from the USA, Canada, and the UK, and Teresa Bejan’s concept of ‘mere civility’, teach us about free speech and toleration? This article seeks to answer that question and suggest a path forward that allows people with deep disagreements about fundamental social and moral issues to live peaceably together despite their differences. This article defends two primary claims: First, ‘mere civility’ is complimentary to a broader legal argument for protecting the freedom of all members of a society to espouse and live out their views within the context of the public square and marketplace; and Second, compelling speech (or agreement) under the guise of civility endangers liberty and genuine equality. When freedom is properly protected, ‘mere civility’ is the natural result, while attempts to achieve something more than ‘mere civility’ invariably jeopardize freedom.

The ‘Mere Civility’ of Equality Law and Compelled-Speech Quandaries

Abstract When, if ever, do business owners have a right to be exempted from laws prohibiting discrimination in the commercial marketplace? Although public debate over this question often focuses on the issue of religious liberty, litigants seeking exemptions in court have placed equal or greater reliance on arguments about compelled speech. This article examines how such arguments have been employed in recent high-profile cases in both the UK and the USA. The article also addresses a new variation on the exemption argument inspired by Teresa Bejan’s book, Mere Civility, and the allegedly ‘minimal’ conception of civility Roger Williams advocated in the 17th century. After explaining why reliance on Bejan and Williams is misplaced, the article turns to the key questions that arise under modern compelled-speech doctrine when a business owner seeks to resist an equal-service mandate. The US Supreme Court ultimately sidestepped those questions in Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, while the UK Supreme Court (UKSC) offered cursory and unsatisfactory answers in Lee v Ashers Baking Co. This article fills the gap with a more thorough analysis.

Masterpiece Cakeshop's Homiletics

Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, on the other. The Court’s central anti-religious-discrimination holding doesn’t only potentially benefit opponents of such discrimination in other cases. This holding also has boomerang-like tendencies that should make it useful for those who would level anti-discrimination claims on a variety of other grounds. Liberal and progressive audiences might thus reconsider their aversions to the decision for this reason alone. What’s more, Masterpiece Cakeshop’s “shadow rulings,” described in detail here, dole out notable victories to cultural conservatives, traditional moralists, and lesbians and gay men alike. Officially declining to adjudicate the merits of the baker’s artistic freedom claim under the First Amendment, the Court’s opinion expresses openness and sympathy, but ultimately substantive doubt about it. In these respects, and notwithstanding suggestions to the contrary, Masterpiece Cakeshop is full of substantive lawmaking. Having tracked that lawmaking to its textual limits, analysis turns to the opinion’s final passage, which, on one level, importantly recapitulates the opinion’s constitutional rulemaking, instructing courts and governmental actors one last time on how to handle cases like this one in the future. On another level, the passage is a compass pointing to lessons in moral politics that the opinion offers to the partisans of the Kulturkampf. One version of the Court’s moral-political teaching involves instruction in a moral politics of respect and friendship. This may be practically politically viable, leaving aside whether it will in fact be accepted. A more ambitious version of the opinion’s moral-political teaching involves a moral politics of sibling love that’s certain to be widely and emphatically rejected. Reconfigured in aesthetic terms, however, the moral politics of sibling love may receive a more nuanced hearing: widely dismissed as an undertaking appropriate for politics, but received with perhaps different sensibilities on an aesthetic plane. If it’s presently uncertain and undecidable whether Masterpiece Cakeshop will prove to have been a major legal event, whatever is ultimately made of it, it covers plenty of ground, doing plenty of legal and extra-legal work, in the here and now.

Errant Exceptionalism

Should LGBT-rights advocates analogize to race when wedding vendors seek religious exemptions from state public accommodation laws so that they may refuse service to same-sex couples? These wedding vendors concede that courts would reject their religious exemption claim when asserted to refuse serving a different-sex African-American couple. Should the analysis and outcome be the same for religious exemptions sought to refuse serving a same-sex couple? Both the ideological left and ideological right contest the use of the race analogy in these cases, although for largely different reasons. On the ideological right, today’s exemptions seekers bristle at the comparison to the vendors of the 1960s who sought to justify racial discrimination based on religious beliefs. They contend that the vendors of the 1960s were actually racists using religion as a cover for their bigotry. In contrast, today’s wedding vendors contend that they are asserting honorable and sincerely held religious beliefs that justify sexual orientation discrimination. On the ideological left, scholars contend that the race analogy is detrimental to coalition building among marginalized communities, that it leads to essentialism, and that it unduly constricts both the vision of civil rights and the agenda of the LGBT movement. This article tackles the opposition from both the ideological left and the right and makes the argument that LGBT-rights advocates should deploy the race analogy in the wedding vendor cases. In doing so, it adds to the scholarly dialogue about the propriety of the race analogy and contributes to that body of scholarship a taxonomy of the race analogy in the LGBT-rights movement. The race analogy in today’s wedding vendor cases is tantalizing to LGBT-rights advocates because the Court has — in the 1960s case of Piggie Park v. Newman — rejected a religious exemption claim in the context of racial discrimination. The analogy thus played a prominent role in the advocacy surrounding Masterpiece Cakeshop v. Colorado Civil Rights Commission. In that case, the U.S. Supreme Court left open the merits questions concerning religious exemptions. It also left unanswered the ancillary question of whether it will accept or reject the race analogy in these cases — an analogy that, if accepted by the Court, would have significant (if not dispositive) weight in resolving these cases against the wedding vendors. As the Court prepares to take up another religious exemption case in its October 2020 Term, the race analogy will again be raised, litigated, and debated. The article adds a new layer of scholarly dialogue to the race analogy debate by contending that its use in these cases is a constructive method of making legible the intersecting interests of marginalized groups in the marketplace as well as revealing the errant exceptionalism — the lack of doctrinal coherence — if the Court were to permit a religious exemption for one protected class (sexual orientation) but not another (race).

The Right Family

The family plays a starring role in American law. Families, the law tells us, are special. They merit many state and federal benefits, including tax deductions, testimonial privileges, untaxed inheritance, and parental presumptions. Over the course of the twentieth century, the Supreme Court expanded individual rights stemming from familial relationships. In this Article, we argue that the concept of family in American law matters just as much when it is ignored as when it is featured. We contrast policies in which the family is the key unit of analysis with others in which it is not. Looking at four seemingly disparate areas of recent policymaking—the travel ban, family separation at the southern border, agricultural subsidies, and the religious rights of closely held corporations—we explore the interplay between the family, the individual, and the corporation in modern law. We observe that both liberals and conservatives make use of the family to humanize or empower certain people, and both reject the family when seeking to dehumanize or disempower. Where liberals and conservatives differ is which families they choose to champion. Ultimately, we conclude that the use of family as a mechanism through which to confer rights and benefits is a cover to hide policies that entrench and exacerbate existing racial and religious hierarchies. Further, in the context of family businesses, it risks becoming a steppingstone for radical expansion of rights to businesses themselves. To tell this story, we analyze the use and rhetoric of family in politics, media, and recent Supreme Court decisions such as Trump v. Hawaii (2018), Burwell v. Hobby Lobby (2014), Kerry v. Din (2015), and Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018).