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Austin Rogers

Abstract

The Free Exercise Clause was enacted to protect diverse modes of religious

practice. Yet certain expressions of free exercise have entailed concomitant

harm to those outside the religious community, especially LGBTQ persons.

This trend has been acutely present in the recent onslaught of wedding-vendor

cases: LGBTQ persons seek the enforcement of statutorily protected rights,

while religious objectors seek refuge from state intrusion under constitutional

shelter. Consequently, wedding-vendor cases present an area of law in which

free-exercise jurisprudence and anti-discrimination jurisprudence have been

clashing.

However, despite the primacy of religious freedom and equal protection in

American jurisprudence, courts analyze wedding-vendor cases in widely

disparate ways. At times, they are under-protective of members of the LGBTQ

community; at others, they penalize wedding-vendors and chill longstanding

religious practices. Thus, the prevailing analytical paradigms are flimsy and

lead to unpredictable outcomes. This deficiency came to light as the Supreme

Court addressed these complex legal issues in Masterpiece Cakeshop, Ltd. v.

Colorado Civil Rights Commission. There, the Masterpiece Court’s holding is

diffident and provides scant guidance to the lower courts in which these cases

continue to percolate. Yet Masterpiece’s significance has been broadly

misconstrued by commentators. Therefore, in order to clarify a muddled sphere

of free-exercise and anti-discrimination jurisprudence, this Article’s task is

twofold. First, it provides an interpretive lens for Masterpiece that is in tension

with the general body of commentary surrounding the decision. Far from a

victory for religious rights advocates, Masterpiece portended a path to

analyzing free exercise claims according to a paradigm that disfavors religious

liberties (if its line of reasoning persists).

This Article’s second task is to advance a framework for analyzing

wedding-vendor cases. This framework employs objective criteria from

Wisconsin v. Yoder when examining requests of religious exemption to public

accommodations laws—an approach that has fallen into judicial disuse given

its ostensible burden on free exercise. Then, after Yoderian vetting criteria are

satisfied, this framework allows for a narrow exception to small business

owners that can demonstrate their religious practices’ rootedness in a

longstanding religious tradition. This template would cause multiple parties to

cede ground and reduce some of the strongest tensions in this area of law. As

such, it would strike a more prudent balance between the dignitary rights of

LGBTQ persons and the free-exercise rights of religious objectors.

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