A Foolish Inconsistency: Religiously and Ideologically Expressive Conduct

by Michael R. Dimino

In Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, Masterpiece’s owner, Jack Phillips, argued that forcing him to bake a wedding cake for a same-sex wedding would violate both his right to free speech and his right to the free exercise of religion, both of which are protected by the First Amendment to the US Constitution. Under US Supreme Court precedent, Mr Phillips’s free-speech claim would be evaluated under the intermediate-scrutiny test of United States v O’Brien. Yet Mr Phillips’s free-exercise claim would be evaluated under a different standard: the rational-basis test of Employment Division v Smith
These different standards are problematic because the free-speech and free-exercise claims are inherently connected, as the freedom of expression includes the freedom to express oneself on religious topics, and religious exercise communicates beliefs and expresses devotion. The two different standards are also susceptible to manipulation by litigants, who have an incentive to characterize religious claims as philosophical or ideological to take advantage of O’Brien’s more favorable standard. In this Article, Professor Dimino argues that the Court should end the inconsistency either by overruling O’Brien and applying Smith to speech cases as well as religion ones, or by overruling Smith and applying O’Brien to religious cases as well as speech ones.

DOI 10.23815/2421-2156.ITALJ           ISSN 2421-2156

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