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Prof. Glenn Smith Discusses the US Supreme Court's Opinion in Masterpiece Cakeshop

Slice of Cake

In a recent op-ed in the Jurist, titled An Unexpectedly Small Piece of Cake, California Western Professor Glenn C. Smith discusses the potential implications of the U.S. Supreme Court's recent opinion in Masterpiece Cakeshop, Limited v. Colorado Civil Rights Commission.

According to Smith, the case was never likely to deliver the full face-off between Religious Free Exercise and Anti-Discrimination Rights that many people expected.

Cake baker Jack Phillip's claim to avoid administrative sanctions despite refusing on religious grounds to sell a specialty cake to a couple celebrating their same-sex union depended upon a boutique Free Speech theory not likely to be generally usable by the nation's businesses, writes Smith.

But Masterpiece Cakeshop always contained an even narrower option for a ruling; a 7-2 majority of the Supreme Court took this route when it handed down a limited win for the baker on June 4, 2018, Smith continues. The result was a modest reaffirmation of recent Court rulings red-lighting governmental agency discrimination against religious believers. The decision generally left for another day the question still resonating in political, social and legal circles - whether, and to what extent, sincerely held religious beliefs can overcome the rights of others to be treated with equal dignity.

Among the many interesting dimensions of Masterpiece Cakeshop, Smith focuses on three. First, the case provides a particularly high-profile example of how the legal issues actually argued to the Court can depart sharply from what many Americans understand the legal issues to be from media coverage and general conversation. Second, Masterpiece Cakeshop likely suggests how, by the time constitutional issues are subjected to full briefing and oral argument, they may look very different (and much more troublesome) than they did when initial certiorari review was granted. As a result, the justices may come to see that discretion is the better part of valor. Third, the recent decision provides the second prominent example in two years of how justice alignments on religious-freedom cases don't cleave along strictly ideological lines.

Read the full op-ed here: http://www.jurist.org/forum/2018/06/smith-unexpectedly-small-cake.php