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Abstract

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access to all public places of commerce. A second background strategy defends discrimination for conduct (like marriage) rather than status such as sexual orientation. This approach has found no positive reception in the courts because of the close relationship between same-sex marriage and the status of being homosexual.

The principle legal arguments consider first the free speech claim that cakes send unwilling messages of support for homosexuality. Although courts have rejected these defenses, the possibility of a coerced speech defense contextualized to the receiving audience and read against background social norms should be recognized. The marquee free exercise claim presents an even less likely chance of success, especially in states without a RFRA law. In jurisdictions that do have such a law, it is unclear how judges will assess the government’s compelling interest to prevent sexual orientation discrimination. That analysis will involve a description of the harms threatening both sides of the conflict. While the injuries arising from the violation of sincerely held religious beliefs are to be assumed, the dignitary harms to the same-sex couple should not be mischaracterized and trivialized as a “minor inconvenience.”

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