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The Supreme Court’s 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission took up the question whether a state law barring discrimination on the basis of sexual orientation could be applied to a business whose owner had religious objections to participating in a same-sex wedding. The decision turned on the majority’s finding that the Commission’s ruling against Masterpiece Cakeshop was tainted by anti-religious animus, an impermissible basis for government action. The Court did not need to reach the broader question of whether a law like Colorado’s could constitutionally be applied if the agency acted without the impermissible animus. In this article I argue that the Court’s emphasis on animus was consistent with principles deeply embedded in constitutional jurisprudence, from several provisions of the First Amendment, to the Equal Protection Clause of the Fourteenth Amendment. For this reason, it is critical that government actors base their decisions on grounds other than animus. This includes legislators. While Masterpiece Cakeshop involved animus at the enforcement stage, a similar result is likely if hostility to religion played a substantial role in the legislature’s passage of the law. I examine the passage of a Utah law barring discrimination on the basis of sexual orientation and gender identity, and the consideration of a similar law in Kentucky, as models for demonstrating compromise with, and respect for, religious views. This process can insulate these laws from claims that they were the product of anti-gay animus.
Samuel A. Marcosson, Masterpiece Cakeshop and Tolerance as a Constitutional Mandate: Strategic Compromise in the Enactment of Civil Rights Laws, 15 Duke Journal of Constitutional Law & Public Policy 139-181 (2020)
Available at: https://scholarship.law.duke.edu/djclpp/vol15/iss1/5