Michael McConnell on Masterpiece Cakeshop

If a state recognizes the right of “shopkeepers” to refuse service on the basis of secular principles, it cannot punish others who refuse service on the basis of religious principles. The case might be different if all bakers were required to bake all cakes expressing all ideas—but Colorado did not have such a rule. The constitutional principle recognized in this case is not of expansive freedom for religious exercise, but simply of neutrality. The principle is “narrow,” but it is supremely important.

Enforcement of a genuine public accommodation law, such as a public utility law that requires the utility to serve all comers on a nondiscriminatory basis, would not violate the Free Exercise Clause as interpreted in Smith, because such a law is neutral and generally applicable. A law that allows some bakers to choose not to bake cakes contrary to conscience but requires others to do so, is not neutral or generally applicable, and warrants strict scrutiny.

If the Hobby Lobby Electric Corp. denied service to a household of devil worshipers, it would lose a free exercise case under Smith. But if the Social Justice Water Works were permitted to deny service to the Ku Klux Klan Country Club, Hobby Lobby Electric’s case would be different. The state cannot allow non-religious people to follow their consciences but strictly enforce the law against religious people. That, I think, is the enduring legacy of Masterpiece.

Michael McConnell, via Volokh Conspiracy, distilling Masterpiece Cakes. Eugene Volokh disagrees, but the disagreement strikes me as being about McConnell’s unqualified use of the term “principles.” For once, I think Volokh is being a bit dense or credulous. The ability of the law to heap precedent on precedent, a sort of additio ad absurdum, is on full display.

Reader John @ReaderJohn
My main blog is the Tipsy Teetotaler, http://intellectualoid.com.