Why The Masterpiece Ruling Is Truly A Major Win For Religious Liberty

By John C. Eastman - Posted at The Federalist:

Despite years of case law emptying free exercise, the Supreme Court has now confirmed that government cannot apply laws in a discriminatory way against religious believers.

Progressives’ prompt trivializing of Monday’s victory for religious liberty in Masterpiece Cakeshop v. Colorado Civil Rights Commission is unsurprising, but that many conservatives have reacted in the same way is troubling. Two essays at The Federalist belittled the ruling; Catholic Vote called it a “very small win for religious liberty,” while the Wall Street Journal’s editorial board says the victory for religious liberty “may be short lived.”

An essay at First Things, though, takes the proverbial cake: “Only profound naïveté can spin the majority decision as a victory for religious liberty.” If victory produces this level of lament, it is disturbing to contemplate how conservatives would have reacted to defeat.

Conservative cynicism toward Masterpiece Cakeshop suggests a deep—although somewhat appreciable—misunderstanding of Free Exercise Clause jurisprudence. As I explained when writing about this case at The Federalist before oral argument, despite the popular media and the primary argument made in favor of the baker making this case about free speech, in reality this case “is, fundamentally, about religious liberty.”

The Supreme Court agreed. Despite almost 30 years of Supreme Court case law emptying the First Amendment’s Free Exercise Clause of almost all substantive content (thanks largely to a 1990 decision by Justice Scalia called Employment Division v. Smith), the Supreme Court has now confirmed that the Free Exercise Clause does not let the government apply laws in a discriminatory way against religious believers, even if the laws were not designed to discriminate against those believers, simply because the government finds the religious belief “offensive.




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