Menu Close

Masterpiece of Misdirection?


Mark Strasser


June 19, 2019

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the United States Supreme Court issued an opinion, along with the accompanying concurrences and dissent, that may well destabilize various settled areas of constitutional law and likely represents shots across the bow with respect to a number of issues that will make their way before the Court. In Masterpiece, the Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple. The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry. Part II of this Article discusses Masterpiece Cakeshop, explaining some of the contradictory signals contained within it and why this opinion may prove to be much more significant than many commentators seem to appreciate. Part III discusses some of the ways that the decision may modify First Amendment law and may undermine antidiscrimination protections as a general matter. The Article concludes that the Masterpiece Cakeshop holding permitted the Court to put off for another day resolution of some of the very thorny issues that may arise when sincere religious convictions are in conflict with antidiscrimination laws. Many of the implicit views and approaches contained within Masterpiece Cakeshop suggest that future opinions will be at best quite contentious and at worst insupportable as a matter of reason or precedent.


Mark Strasser, Masterpiece of Misdirection?, 76 Wash. & Lee L. Rev. 963 (2019).