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Abstract

When two core identities clash, such as sexual orientation and religious belief, which one should prevail? I argue that, rather than picking a winner and a loser, the Supreme Court in Masterpiece Cakeshop allowed for a much broader solution than the Court was able to provide—legislative accommodations rooted in tolerance that protect the dignity of same-sex couples and respect sincere religious beliefs.

In Masterpiece Cakeshop, a Colorado baker refused to design a cake for a same-sex wedding based on his religious beliefs. Instead of picking a broad winner and loser, the Supreme Court ruled narrowly by finding the Colorado Civil Rights Commission acted with hostility toward the baker’s religious beliefs. At the end of the opinion, the Court provided a formula for legislative accommodations: “[T]hese disputes must be resolved [1] with tolerance, [2] without undue disrespect to sincere religious beliefs, and [3] without subjecting gay persons to indignities when they seek goods and services in an open market.”

In this paper, Part I looks at historical examples of legislative and judicial accommodations of religion under the Free Exercise Clause. Part II analyzes the Supreme Court’s decision in Masterpiece Cakeshop and shows how the Court by ruling narrowly left open a solution that could protect both sides. Part III looks at why the legislature is better equipped than the judiciary to solve the issue. Part IV considers several different approaches to legislative accommodations by examining proposed and enacted legislative accommodations, and Part V applies these approaches to see how they would apply to wedding vendors, government officials, and religious adoption agencies.

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