Marc Spindelman (Ohio State) has published Masterpiece Cakeshop’s Homiletics, 68 Cleveland State L. Rev. 347 (2020). Here is the abstract:
Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, on the other. The Court’s central anti-religious-discrimination holding doesn’t only potentially benefit opponents of such discrimination in other cases. This holding also has boomerang-like tendencies that should make it useful for those who would level anti-discrimination claims on a variety of other grounds. Liberal and progressive audiences might thus reconsider their aversions to the decision for this reason alone. What’s more, Masterpiece Cakeshop’s “shadow rulings,” described in detail here, dole out notable victories to cultural conservatives, traditional moralists, and lesbians and gay men alike. Officially declining to adjudicate the merits of the baker’s artistic freedom claim under the First Amendment, the Court’s opinion expresses openness and sympathy, but ultimately substantive doubt about it. In these respects, and notwithstanding suggestions to the contrary, Masterpiece Cakeshop is full of substantive lawmaking. Having tracked that lawmaking to its textual limits, analysis turns to the opinion’s final passage, which, on one level, importantly recapitulates the opinion’s constitutional rulemaking, instructing courts and governmental actors one last time on how to handle cases like this one in the future. On another level, the passage is a compass pointing to lessons in moral politics that the opinion offers to the partisans of the Kulturkampf. One version of the Court’s moral-political teaching involves instruction in a moral politics of respect and friendship. This may be practically politically viable, leaving aside whether it will in fact be accepted. A more ambitious version of the opinion’s moral-political teaching involves a moral politics of sibling love that’s certain to be widely and emphatically rejected. Reconfigured in aesthetic terms, however, the moral politics of sibling love may receive a more nuanced hearing: widely dismissed as an undertaking appropriate for politics, but received with perhaps different sensibilities on an aesthetic plane. If it’s presently uncertain and undecidable whether Masterpiece Cakeshop will prove to have been a major legal event, whatever is ultimately made of it, it covers plenty of ground,doing plenty of legal and extra-legal work, in the here and now
The full piece is available here.