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
