Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws, this Essay suggests that the reconciliation of these seemingly irreconcilable interests is rooted in their common intrinsic value: maintaining the social order. Ultimately, Masterpiece Cakeshop provides an opportunity for the Court to reclaim the grounding principles inherent in public accommodation laws that recognize the civic duty in “serving the public” and hold that free exercise must bow to equal protection when necessary to maintain the social order.
Terri R. Day & Danielle Weatherby, Contemplating Masterpiece Cakeshop, 74 Wash. & Lee L. Rev. Online 86 (2017), https://scholarlycommons.law.wlu.edu/wlulr-online/vol74/iss1/6