The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of judicial scrutiny. I argue that this categorical approach places undue emphasis on broad, macro-level interests at the expense of individual, micro-level interests. Consequently, this leads to a presumption that some constitutional rights are superior to others. I posit that, considering this flaw, the Court should abandon this approach and adopt a pragmatic framework that compels courts to articulate and then weigh the individual costs and burdens facing all parties to a particular case. Such an approach will ensure a fair and balanced framework for resolving conflicts between constitutional rights and avoid the establishment of a hierarchy of constitutional rights.
Ken Hyle, When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, 9 ConLawNOW, 200 (2018)