On Masterpiece--and Romer--for Cato SCT Review

I have an essay (available here) in the new Cato Supreme Court Review (the issue reviewing the 2017-18 term), entitled "Masterpiece Cakeshop: A Romer for Religious Objectors?" It explores the idea that Masterpiece was written--for the moment--as a narrow decision, based on official decision-makers' hostility in the particular case rather than on a broad assertion of religious objectors' free exercise or free speech rights, and in that sense is similar to Romer v. Evans (1996), the first gay-rights ruling. Romer struck down Colorado's Amendment 2 on the ground that it reflected animus toward gays and lesbians; the Court thus avoided (and did for almost 20 years) saying anything about heightened scrutiny for gay-rights claims.

From the abstract:

This essay examines Masterpiece and the unresolved religious-liberty questions through the lens of the similarities with Romer (and potentially with the later, more-expansive gay-rights rulings). Part I describes the resemblances between the two rulings, among other things that in both, animus or hostility serves as a “minimalist” holding that avoided committing to broad implications for future cases. But that modesty comes with a cost: To find animus, the Court must denounce the decision-makers in the immediate case as especially unjustified, even malicious, and that conclusion can cause equal or greater anger compared with broader holdings, such as declaring a suspect classification or fundamental right. In the final parallel with Romer, I sketch how the finding of unequal, hostile treatment in Masterpiece might provide the basis for further protection of religious traditionalists’ right to decline to facilitate same-sex marriages, at least in an appropriately limited set of circumstances. [E.g. solidifying Masterpiece's holding that when the state allows social liberals to refuse to provide goods or services with messages that offend against their conscience, it must also allow religious conservatives to refuse in analogous circumstances. And perhaps future rulings adopting more religion-protective readings of Employment Division v. Smith--TB]

       I then turn to general parallels between gay-rights and religious-freedom claims—parallels that call for sympathizing with and protecting both sides. Those parallels depend less on the improper motives or attitudes (animus/hostility) of the regulators, and more on the seriousness of the interests and predicaments of those harmed by government action (same-sex couples denied marriage rights, religious objectors penalized for following their beliefs). Developing sympathy for their respective predicaments, I argue, is more likely to calm our society’s serious problem of negative polarization—while condemning others for animus is more likely to aggravate such polarization. That in turn, I suggest, makes an argument for relying on heightened-scrutiny rationales in these cases, rather than findings of animus or hostility.