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Supreme Court Review

Article Title

Inverting Animus: Masterpiece Cakeshop and the New Minorities

Abstract

Masterpiece Cakeshop v Colorado Human Rights Commission has been discussed in fairly specific terms—the collision of liberty and equality; or, more particularly, religious freedom versus antidiscrimination norms. This frame is certainly accurate, though hardly exhaustive. There are a number of lenses through which we might understand this case. And, indeed, different lenses may cast the Court’s decision in entirely new lights, bringing the decision into conversations that may, at first blush, seem quite distant from the questions presented to the Supreme Court. With this in mind, in this essay I reframe Masterpiece Cakeshop to go beyond the collision of religious liberty and equality to intervene in these other conversations. As I explain, Masterpiece Cakeshop gestures toward interesting, though neglected, developments in antidiscrimination law. As claims for religious accommodation have proliferated, those seeking accommodations on religious grounds have sought to frame themselves as dissenters from majoritarian norms. To wit, in seeking an exemption from the ambit of Colorado’s public accommodations law, Masterpiece Cakeshop petitioner Jack Phillips casts his claims in this light. He seeks an exemption from the law not because he is a bigot who wishes to discriminate against LGBTQ persons, but rather because he is an observant Christian in an increasingly secular culture In other words, he claims to be a minority in a majoritarian culture. In Phillips’s view, by applying the public accommodations law to his conduct, the Colorado Civil Rights Commission impermissibly targeted those whose religious beliefs do not condone same-sex marriage and homosexuality.

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