In the next few months, the Supreme Court will decide Masterpiece Cakeshop, one of a series of cases in which conservative Christians have sought exemptions from public-accommodation laws that ban discrimination on the basis of sexual orientation. Like most of these disputes, the case involves a small business that declined, because of the owner's Christian convictions, to perform a service in connection with a same-sex wedding—in this case, designing and baking a wedding cake. In most of these disputes, the lower courts have been unwilling to grant businesses religious exemptions from anti-discrimination rules.
Somewhat surprisingly, however, at oral argument in Masterpiece Cakeshop last December, the justices' questions suggested that the Court might rule in favor of the bakery. Justice Kennedy, in particular, hinted that he believed the state's denial of an exemption was an example of anti-religious bias against the conservative Christian who owns the bakery, Jack Phillips. Such bias would bring the case within the old “compelling interest” test of Free Exercise Clause cases like Sherbert v. Verner. Under that test, the state would prevail only if it showed that it had a compelling interest in applying the anti-discrimination laws to the bakery, notwithstanding a substantial burden on Jack Phillips's religious exercise, and that the state had chosen the least-restrictive means of advancing that interest.
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