Masterpiece Cakeshop: And the winner is … pluralism?

Elizabeth A. Clark is Associate Director of the International Center for Law and Religion Studies at Brigham Young University’s J. Reuben Clark Law School. She joined an amicus brief of 34 legal scholars in support of the cakeshop in this case.

No one seems pleased with the result in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights CommissionIn significant ways, both those supporting Jack Phillips, the baker, and proponents of Charlie Craig and David Mullins, the same-sex couple, lost. On the one hand, the Supreme Court refused to grant unqualified protection to those who conscientiously object to providing goods and services to same-sex couples, and at the same time the court shut down efforts to assert that all forms of discrimination affecting same-sex couples should be labeled mere bigotry. The court pushed for a more pluralist approach, noting both that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “[a]t the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

The Supreme Court’s decision was certainly not a complete win for those seeking religious exemptions to celebrating same-sex marriages. There is no clearly delineated protection for future bakers, florists or photographers who feel that providing cakes, flowers and photography for same-sex weddings would violate their religious principles. By focusing on the Colorado Civil Rights Commission’s failure to provide the “neutral and respectful” adjudication of Phillips’ religious claims that the free exercise clause requires, the court left open broader questions of compelled speech and free exercise.

Continue reading “Masterpiece Cakeshop: And the winner is … pluralism?”