Document Type

Article

Publication Title

Harvard Journal of Law & Public Policy

Publication Date

Summer 2019

Volume

42

First Page

711

Abstract

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

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