The Yale Law Journal


Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop

14 Sep 2018

abstract. Conversation about Masterpiece Cakeshop v. Colorado Civil Rights Commissionhas revolved around the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. But this focus misses important aspects of the Court’s decision. In Masterpiece Cakeshop, the Court addresses the relationship between religious exemptions and antidiscrimination law in cases of sexual orientation as well as race. As we show in this Essay, the decision supplies more guidance on free exercise exemptions under public accommodations laws than most have acknowledged.

The Court affirms an approach to public accommodations law that limits religious accommodation to prevent harm to other citizens who do not share the objector’s beliefs, in the process repudiating longstanding arguments for expansive exemptions. We situate the Court’s concerns about the third-party harms of accommodation in Masterpiece Cakeshop in prior caselaw on antidiscrimination law and religious liberty. Finally, we relate the majority’s requirement of government neutrality in the adjudication of religious exemption claims to the majority’s instruction to limit religious exemptions in public accommodations. In particular, we demonstrate that the requirement that the government treat religious claimants evenhandedly and with respect does not translate into a requirement that the government grant religious claimants exemptions from public accommodations laws.


Conversation about Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission1 has largely revolved around the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect.2 But the decision also supplies important guidance on the relationship between religious exemptions and antidiscrimination law in cases of sexual orientation as well as race—themes that we examine in this Essay.

Jack Phillips, the owner of Masterpiece Cakeshop, refused to provide wedding cakes for same-sex couples and sought an exemption, on both free exercise and free speech grounds, from the state public accommodations law that prohibited businesses from discriminating based on sexual orientation.3 The Supreme Court held that the state civil rights commission had violated Phillips’s free exercise rights—not by refusing to exempt his bakery from obligations imposed by antidiscrimination law, but instead by failing to consider his claim in a neutral and respectful way.4

Scholars and commentators have emphasized that the Court’s opinion is narrowly concerned with neutrality in the adjudication of religious exemption claims.5 But, as we show in this Essay, Masterpiece Cakeshop is not narrow. The Court supplied more guidance on the relationship between religious exemptions and antidiscrimination law than most have acknowledged. Passages of the majority opinion repudiate longstanding arguments advanced by exemption advocates and instead affirm an approach to public accommodations law that limits religious accommodation to prevent harm to other citizens who do not share the objector’s beliefs.

These portions of the majority opinion were necessary for the Court’s decision. Given the commitments of the diverse array of Justices who signed on to the majority opinion, it seems clear that the opinion’s guidance on the relationship between antidiscrimination law and religious exemptions was crucial to achieving that majority. Aspects of the opinion that we highlight plainly resonate with Justice Kennedy’s reasoning in Burwell v. Hobby Lobby Stores6 and the gay rights cases.7

Justice Kennedy announced his retirement a few weeks after the Court issued its decision in Masterpiece Cakeshop. This Essay, like the Masterpiece Cakeshop opinion itself, is rooted in a world in which Justice Kennedy shaped the law. Yet it anticipates a world in which he no longer plays that role. For that reason, we have made a point to locate the opinion’s concern about the third-party harms of accommodation in relation to the Court’s recent opinions on religious liberty—opinions that current conservative members of the Court have either authored or joined.8

For years to come, federal and state courts, administrative agencies, and legislative bodies at every level will debate the relationship between religious exemptions and antidiscrimination protections. We expect the law enunciated in Masterpiece Cakeshop to change, but it is by no means clear how fast or in what ways or in which fora. Surely there are conservatives who will use their newfound power to strike the balance between equality and religious liberty very differently than the Court in Masterpiece Cakeshop has. Yet our purpose in this Essay is to show that Masterpiece Cakeshop is not a narrow opinion that avoids fundamental questions on the relationship between antidiscrimination law and religious liberty; rather, the opinion offers a resounding answer to a full-bore challenge to public accommodations law.

Fueling the recent wedding-cake litigation is a deep challenge to public accommodations laws that date back to the civil rights era.9 In Masterpiece Cakeshop, eight members of the Court responded by reaffirming the public accommodations settlement forged over a half-century ago.10 The majority recognizes that the government’s interest in securing equal opportunity is as important as the government’s responsibility to ensure neutrality in adjudication. The majority closes its opinion with the instruction that “these disputes must be resolved . . . without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”11

Part I of this Essay begins by discussing two prominent arguments for expansive religious exemptions that Masterpiece Cakeshop plainly rejects. Conservative advocates have long argued that courts and legislators should treat race and sexual orientation differently, denying religious exemptions from race nondiscrimination mandates but authorizing religious exemptions from sexual orientation nondiscrimination mandates. These advocates argue that religious exemptions from sexual orientation nondiscrimination mandates should instead be modeled on the law governing abortion, and draw on a growing body of statutes—largely unreviewed by courts12—that authorize healthcare providers to refuse to provide certain reproductive healthcare services on religious grounds. In Masterpiece Cakeshop, the Court rejects these arguments for expansive exemptions, instead assimilating sexual orientation into the antidiscrimination framework and affirming the importance of public accommodations laws.

Part II identifies principles animating the Court’s approach to religious exemptions and relates them to the Court’s other religious liberties decisions. We show how Masterpiece Cakeshop reaffirms public accommodations law and authorizes limits on religious exemptions to prevent harm to other citizens who do not share the objector’s beliefs. The Court emphasizes that religious exemptions from public accommodations laws must be constrained to avoid restricting access to the market, as well as to avoid stigmatizing third parties. As we discuss, the Court’s attention to limiting the third-party harms of religious exemptions aligns the Free Exercise Clause guidance in Masterpiece Cakeshop with the discussion of third-party harm in the Court’s recent Religious Freedom Restoration Act (RFRA) decisions in Hobby Lobby13 and Zubik v. Burwell.14 Finally, we address the relationship between Masterpiece Cakeshop’s requirement that government actors adjudicate religious exemption claims evenhandedly and the Court’s instruction to limit religious exemptions to avoid harm to gays and lesbians. We explain why the requirement of evenhandedness does not translate into a mandate for exemptions.

Last, Part III shows that the Court’s decision bears on legislative drafting as well as litigation. Going forward, the Court’s concern about restraining religious exemptions so that they do not inflict material and dignitary harm on those who do not share the objector’s beliefs should guide not only adjudication, but also the drafting of legislation concerning LGBT equality and reproductive healthcare.

I. refusals to serve: the race and abortion analogies, and the court’s response

Those who characterize the Court’s opinion in Masterpiece Cakeshop as narrow do not appreciate how the majority rejects certain familiar arguments for expansive religious exemptions from LGBT-protective laws. This Part identifies two of these arguments and examines the Court’s response to them.

In the decade before Masterpiece Cakeshop, and in the litigation itself, advocates asserted that courts and legislatures should treat sexual orientation differently than race for purposes of exemptions from antidiscrimination law. They argued that, whereas courts have rightly resisted religious exemptions from laws prohibiting race discrimination, courts should adopt a two-tiered framework and grant religious exemptions from laws prohibiting sexual orientation discrimination. Phillips’s lawyers from the Alliance Defending Freedom opposed the “race analogy [as] mere hyperbole,”15 arguing in Colorado courts that “those who cited religion as an excuse for racism” differ from those who “just cannot celebrate same-sex marriages.”16 Similarly, as the Ethics and Religious Liberty Commission of the Southern Baptist Convention contended in its amicus brief, “[c]omparisons between Petitioner’s measured objection to celebrating same-sex marriage and someone else’s racist beliefs or opposition to interracial marriage should be discarded as unfair and offensive.”17 Accordingly, as the Heritage Foundation’s Ryan Anderson, one of the most prominent spokespersons for broad religious exemptions, urged in his amicus brief, the “Court could rule in favor of Phillips but not in favor of a racist baker.”18

Phillips’s supporters and other advocates for broad religious exemptions urge courts and legislatures to think about accommodating conscience claims in the LGBT context on the model of abortion rather than race. Consider the amicus brief filed by the U.S. Conference of Catholic Bishops in support of Masterpiece Cakeshop. That brief detailed “individual and organizational conscience rights in the context of abortion.”19 It presented the abortion regime as a model for same-sex marriage, asserting that “[t]he government should never penalize individuals like Phillips, or organizations like Catholic Charities, for their long-held beliefs about God’s teachings regarding marriage.”20 Ryan Anderson’s amicus brief also connected abortion to LGBT rights in the same passage that distinguished race from sexual orientation. For Anderson,

pro-life conscience protections do not undermine Roe v. Wade or women’s equality. Neither do conscience protections for conjugal marriage supporters undermine Obergefell or gay equality. By contrast, conscience protections for opponents of interracial marriage could undermine the purposes of Loving v. Virginia, Brown v. Board of Education, and the Civil Rights Act of 1964: racial equality.21

The comparison to abortion is not merely an analogy employed in courts; it is a call to activists to secure exemptions protecting a right to refuse to deal with same-sex couples in many settings. Emphasizing that opponents of abortion had secured expansive “religious liberty and conscience rights,” Anderson has urged his fellow opponents of same-sex marriage “to do the same: Ensure that we have freedom from government coercion to lead our lives, rear our children, and operate our businesses and charities in accord with our beliefs—the truth—about marriage.”22As we have elsewhere shown, in matters concerning abortion and contraception, a largely unadjudicated body of healthcare refusal laws allows individuals and organizations not only to refuse to directly perform the objected-to procedure, but also to refuse to indirectly facilitate the procedure.23 Invoking this healthcare-refusals model, advocates like Anderson argue that expansive exemptions should apply to a range of individuals and organizations asserting objections to same-sex relationships in a wide variety of institutional contexts.24

These two arguments for broad religious exemptions—the two-tiered antidiscrimination model, and the unconstrained refusals model—work together. They point the nation away from an antidiscrimination regime that has tolerated relatively limited religious exemptions25 and toward a healthcare-refusals regime with little court oversight that has authorized ever-expanding religious exemptions, seemingly without regard for their impact on those who do not share the objector’s beliefs.26

The majority opinion in Masterpiece Cakeshop rejects these two related arguments. Rather than carve out a special (and lesser) place for sexual orientation, Masterpiece Cakeshop treats lesbian and gay individuals as full members of the national community deserving of equal protection from discrimination. The Court accomplishes this by analyzing the case as presenting an ordinary question of public accommodations law. At the outset of its opinion, the Court invokes the “general rule” that religious objections “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”27 In so doing, the Court cites the leading precedent rejecting a free exercise claim in the public accommodations context—Newman v. Piggie Park Enterprises, Inc.—which denied a business owner’s claim for an exemption from the race nondiscrimination mandate of the 1964 Civil Rights Act.28

The Court, then, does not endorse a two-tiered system of antidiscrimination law in which some groups get full protection and others get less. Instead, it adopts one public accommodations framework in which government “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.29

The antidiscrimination regime into which the Court assimilates sexual orientation stands in stark contrast to the healthcare refusal statutes regulating abortion and contraception that few courts have reviewed.30 Whereas the antidiscrimination tradition limits religious accommodations to prevent material and dignitary harm to third parties, many healthcare refusal laws furnish ever-expanding accommodations to religious objectors without concern for the material and dignitary harms that are inflicted on women.31 As we have shown, many of these laws allow providers—including hospitals and other practices—to refuse to provide women with referrals, counseling, and information relating to reproductive healthcare, on the logic that such provisioning would make the objector complicit in a woman’s objected-to conduct.32 Women exercising reproductive rights are deprived of the access and dignity that the Court values in Masterpiece Cakeshop;33 in the language of the Court’s opinion, they are denied “equal access” and made subject to “community-wide stigma.”34

Consider a recent example that arises at the intersection of Arizona’s public accommodations law and the state’s healthcare refusal law. Nine weeks into pregnancy, Nicole Arteaga’s fetus lost its heartbeat, and her doctor prescribed her misoprostol to end the failed pregnancy.35 Walgreens notified her that it had filled the prescription, yet when she arrived to pick up the medication, the pharmacist asked Arteaga if she was pregnant and then refused to give her the prescription, citing his ethical beliefs.36 Arteaga left the pharmacy in tears, later saying she felt “ashamed and . . . humiliated” in front of the other customers and her 7-year-old child.37 Reader comments to a New York Times article about the incident echo Arteaga’s reaction that the pharmacist acted inappropriately in obstructing her access to needed medication and making a public example of her: “Pharmacists are not clergy . . . . Walgreens is not a church and thus random persons should not be able to sit in judgment and impact a customer’s health”;38 “If you don’t want to dispense those meds get a different job”;39 “Then I am going to get a job at Cabela’s and refuse to sell guns based on my moral objections.”40

II. equal opportunity and third-party harm

In Masterpiece Cakeshop, the Court emphasizes the importance of antidiscrimination protections in public accommodations and reaffirms precedent limiting religious exemptions from such laws. It stresses that exemptions must be limited in order to vindicate the government’s interest in securing equal opportunity, to afford protected classes equal access to goods and services, and to shield them from stigma.

This Part explores the principle underlying that guidance and relates it to the Court’s other public accommodations and religious liberties decisions. We begin by examining the caselaw through which the Court evaluates claims for religious exemptions under public accommodations statutes. We then show how the Court’s attention to the harm that religious exemptions can inflict on other citizens echoes critical passages of recent religious liberties caselaw. We conclude by relating the Court’s requirement of neutrality in government adjudication of religious exemption claims to its call for limits on religious exemptions from public accommodations laws. We demonstrate why neutrality in government adjudication does not translate into a mandate for religious exemptions from antidiscrimination law.

A. Coordinating Public Accommodations and Religious Liberties Law

We begin by observing the doctrinal framework in which the Court evaluates free exercise claims under public accommodations laws. The claimant in Masterpiece Cakeshop sought a religious exemption from a public accommodations law that required those providing services in the market to offer services on the same terms and conditions offered to all other members of the public. In its decision, the Court repeatedly refers to such public accommodations laws as “neutral” and “generally applicable”41 within the meaning of its governing free exercise decision, Employment Division v. Smith.42 Smith allows states to enact neutral and generally applicable laws, even if they burden religion.43 As the Masterpiece Cakeshop Court’s repeated reference emphasizes, public accommodations statutes generally respect the free exercise of religion; they do not single out or target persons on the basis of religious beliefs.

Masterpiece Cakeshop’s description of public accommodations laws as neutral and generally applicable already establishes their constitutionality for Free Exercise Clause purposes under Smith. But the opinion’s citation reaffirming Piggie Park44 reminds us that the public accommodations provisions of the 1964 Civil Rights Act met the “compelling interest” standard that prevailed at the time of Sherbert v. Verner.45In subsequent years, the Court consistently characterized the government’s interest in securing equal opportunities for the beneficiaries of antidiscrimination law as compelling—in the free exercise context with Bob Jones University v. United States46 and in the associational freedom context with Roberts v. United States Jaycees,47 addressing race and sex discrimination, respectively.

Accordingly, in reaffirming the authority of Piggie Park, Masterpiece Cakeshop offers guidance about the analysis of exemptions from antidiscrimination law under RFRA as well as the Constitution. After the Court decided Smith, Congress passed RFRA, which sought to “restore” Sherbert’s “compelling interest” standard.48 Piggie Park therefore supplies strong authority to support public accommodations laws against challenges under RFRA as well as the Free Exercise Clause.49

RFRA prohibits government from “substantially burden[ing] a person’s exercise of religion” unless the government “demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”50 As we have elsewhere discussed at some length, if granting a religious exemption from a public accommodations law would frustrate the government’s interest in enacting the law or harm the law’s beneficiaries, then unencumbered enforcement of the law is likely the least restrictive means of furthering the government’s compelling ends.51

B. Reaffirming the Public Accommodations Concept

The Court’s citation to Piggie Park provides more than doctrinal authority. It reaffirms the concept of public accommodations against conservative challenge. In recent years, some religious conservatives have criticized the concept of public accommodations and argued that business owners should be free to act on their religious convictions in the marketplace, as well as in the public square, by discriminating in their business dealings.52 Indeed, one way to understand the wave of recent wedding-cake litigation is as an insurgent challenge to the public settlement, dating to the lunch-counter sit-ins of the Civil Rights Era, that limited the prerogatives of business owners on the understanding that equal citizenship includes a customer’s equal right to participate in commerce.53

By invoking Piggie Park, Masterpiece Cakeshop asserts that public accommodations laws continue to serve important social ends. In the wake of the sit-ins of the mid-twentieth century, the nation no longer allows business owners to invoke property rights as a reason to refuse service to minorities, as they once commonly did.54 After the searing debates that led to passage of Title II of the 1964 Civil Rights Act, the nation has come to judge such refusals of service as “humiliating.”55 It now enforces public accommodations laws on terms that require business owners, whatever their personal convictions, to run their business in a nondiscriminatory fashion. A framework of this kind facilitates unimpeded access to the market for those who have long been subject to discrimination and who do not share the business owners’ beliefs. That is a primary aim of public accommodations laws—an aim the Court has repeatedly recognized as “compelling.”56

C. Protecting Against Material and Dignitary Harm

Masterpiece Cakeshop is especially concerned to emphasize that public accommodations laws protect against the dignitary as well as the material harms of refusals. In fact, the Court’s analysis begins by affirming that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”57 The opinion’s guidance on free exercise rejects a longstanding argument advanced by many advocates of broad religious exemptions.58 These advocates conceded that those protected by public accommodations statutes might need access to goods and services, but they suggested they did not suffer legally cognizable harm so long as some merchants would sell to them.59

The argument that the Court should only consider material harms is at odds with the origins of our nation’s public accommodations laws and our civil rights tradition. Bob Jones University60 and Roberts61 each hold that the government has compelling interests in enforcing antidiscrimination law. These interests include integrating marginalized groups and protecting them against stereotypes and stigma.62

Masterpiece Cakeshop recognizes these same government interests in protecting marginalized groups from the stigma of refusals. The Court emphasizes that the government’s interest in securing equal access and preventing stigma offers reason to “confine[]” exemptions, otherwise “a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”63

With this passage, the Court makes two key moves. First, the Court makes clear that exemptions must be limited to protect gays and lesbians not only from material but also from dignitary harm. Second, the Court is concerned to limit exemptions with the potential to be asserted by “a long list of persons” who might inflict “community-wide stigma.” Claims by those who object to facilitating a marriage have exactly that potential to expand in numbers. As we have described, complicity-based claims vastly expand the universe of objectors, and accommodating them makes it far more difficult to protect third parties from harm.64 The potential numerosity and impact of such claims is relevant, depending on the legal context, to questions of whether and how exemption claims are recognized.

D. Masterpiece Cakeshop and the Third-Party Harm Principle

By addressing concerns about the third-party harms of religious accommodation, the Masterpiece Cakeshop Court reasons about religious accommodation in the tradition of earlier Free Exercise65 and Establishment Clause66 decisions. Concern with third-party harm67 also has guided the Court’s reasoning in two high-profile RFRA cases addressing exemptions from the contraceptive coverage requirements in the Affordable Care Act. While the body of healthcare refusal laws addressed above generally has escaped judicial review, the Court recently has considered the question of religious accommodation in disputes over contraception. In both Burwell v. Hobby Lobby Stores68 and Zubik v. Burwell,69 employers sought exemptions under RFRA from requirements that insurance coverage provided to employees include coverage for contraception. In both cases, the Court worried about the impact of religious accommodations on other citizens protected by the law who did not share the objector’s beliefs.70

In Hobby Lobby, Justice Alito’s opinion for the Court emphasized that the effect of the “accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”71 Justice Kennedy’s concurring opinion in that case echoed this concern, reasoning that the accommodation may not “unduly restrict other persons, such as employees, in protecting their own interests.”72 Then, in Zubik, the Court issued a per curiam order remanding with instructions that the parties should have “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”73

Across its cases, the Court has reasoned about the validity of religious accommodation with attention to its impact on those who do not share the objector’s beliefs. Masterpiece Cakeshop reasons in the tradition of these earlier cases. The Court affirms a public accommodations regime that has restricted exemptions to prevent harm to those protected by the law. Importantly, the Court emphasizes both material and dignitary harm. The public accommodations law seeks to promote not only equal access but also equal respect. The Court recognizes the government’s interest in avoiding exemptions that would undermine these objectives.

Notice that the Court’s reasoning across these cases contrasts sharply with the many healthcare refusal laws—which rarely have come before courts—that authorize providers to refuse care without consideration of the harm to third parties.74 These healthcare refusal statutes bear little resemblance to the balance articulated in Masterpiece Cakeshop, where the Court insists on the importance of respecting religious liberty while repeatedly expressing concern that the accommodation of religious liberty is appropriately limited so that it does not inflict material and dignitary harm on other citizens. The healthcare refusal laws also look very different from the balance articulated when the Court itself has considered religious exemptions from laws and regulations that protect women’s access to contraception. In considering RFRA exemption claims in Hobby Lobby and Zubik, the Court stressed the importance of accommodating religious objections without affecting women’s contraceptive coverage under the Affordable Care Act.

E. Differentiating Roles: Government Respect in Adjudication and the Seller’s Legal Obligations

How does the limit on religious exemptions in Masterpiece Cakeshop square with the protections the Court extends to religious objectors? The Court requires the government to address religious objectors evenhandedly and with respect when the government adjudicates religious exemption claims.75 At the same time, as we have shown, the Court makes clear that the government can enforce public accommodations laws that protect gays and lesbians “in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public,” and that the government may restrict religious exemptions from such laws in order to achieve that purpose.76

The requirement that the government give the religious claimant “neutral and respectful consideration”77 does not translate into an obligation to provide the religious claimant an exemption from the public accommodations law, as some have begun to suggest.78 The roles of distinct actors are at issue: the government in adjudicating a claim, the seller in abiding by public accommodations law, and the buyer in engaging in a transaction protected by the public accommodations law.

The Court imposes a requirement of respect on the government acting as an adjudicator; this role requirement does not alter the seller’s legal obligation to transact in a nondiscriminatory manner. The seller’s role is constrained by law: to provide “protected persons equal access to goods and services.”79 (The public has come to expect sellers to act on these terms and is startled when they do not, as reactions to the Walgreens pharmacist’s refusal illustrate.80)

As we observed, in recent years some religious conservatives have challenged the role imposed on market participants by public accommodations laws. In Paul Horwitz’s description, they seek to “upend[]” the conventional “picture of the marketplace as a neutral space.”81 In Masterpiece Cakeshop, the Court rejected this challenge.82 A public accommodations law can require a seller to act in the market in accordance with this role and provide “protected persons equal access to goods and services,” while treating the seller’s religious beliefs with respect.83 Indeed, the concluding passage of Masterpiece Cakeshop directs the government to adjudicate disputes involving religious claimants evenhandedly even as it reaffirms the importance of limiting religious exemptions in public accommodations: “[D]isputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”84

This balance, which the Court reaffirms in the concluding sentences of its opinion, is unexceptional and fully consistent with the Court’s Free Exercise Clause precedents. Smith allows the government to enact neutral, generally applicable laws and makes clear that exemptions are not required if such laws incidentally burden religion. Piggie Park and Bob Jones University affirm the importance of enforcing antidiscrimination protections even when religious individuals and organizations assert sincere objections. And, as we explained above, the Court’s religious liberties decisions have consistently featured concern about the third-party harms of religious accommodation. Masterpiece Cakeshop carries forward this concern—affirming the government’s weighty interests in enforcing its public accommodations law as well as the government’s reasons for restricting exemptions to avoid harm to gays and lesbians85—while continuing to insist that the government treat religious individuals and organizations with neutrality and respect.

III. implications for litigation and drafting legislation

As we have shown, the Court’s reasoning in Masterpiece Cakeshop extends well beyond concern with the risk of bias in the adjudication of exemption claims. The Court’s approach to religious exemptions in Masterpiece Cakeshop has important implications for litigation and disputes over legislation concerning LGBT and reproductive rights.

First, Masterpiece Cakeshop provides authoritative guidance in addressing exemption claims from laws prohibiting sexual orientation discrimination. It recently played a crucial part in a case brought by the Alliance Defending Freedom, in which a wedding vendor with religious objections to same-sex marriage challenged Phoenix’s nondiscrimination ordinance.86 In rejecting the exemption claim, the Arizona Court of Appeals invoked the Supreme Court’s reasoning in Masterpiece Cakeshop, including its citation to Piggie Park.87 Masterpiece Cakeshop’s reasoning will continue to shape disputes in litigation arising in the public accommodations setting and under other antidiscrimination laws.

Second, the Court’s reasoning provides direction to those engaged in drafting new antidiscrimination legislation at the federal, state, and local levels. In these contexts, some advocates insist that legislation that would prohibit LGBT discrimination should be conditioned on the availability of expansive religious exemptions.88 Often, advocates seek such broad exemptions when they have the political power to extract them.89 But Masterpiece Cakeshop suggests that our Constitution does not require these broad exemptions and may provide reasons to limit them when they threaten to “result[] in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.”90

Concerns about third-party harm apply even more dramatically to the freestanding exemption statutes that some advocates have worked to enact. Such statutes simply authorize religious refusals, without providing any nondiscrimination protections for LGBT people. Some of these statutes aim broadly. For instance, Mississippi’s law authorizes refusals by businesses and individuals who decline to provide “services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage, based upon or in a manner consistent with a sincerely held religious belief or moral conviction . . . .”91 Others target specific services. For example, Oklahoma recently enacted a law allowing licensed adoption and foster care agencies to refuse service to same-sex couples on religious grounds.92 These laws allow providers, including those licensed by the state, to inflict material and dignitary harm on gays and lesbians.93 As we have shown, legislation of this kind is deeply at odds with the understanding of religious accommodation that guides the Court’s reasoning in Masterpiece Cakeshop and recent RFRA cases.

Third, the Court’s reasoning in Masterpiece Cakeshop has implications for the largely unadjudicated body of healthcare refusal laws that, while commonly associated with abortion and contraception, also govern assisted reproductive technologies and other matters of LGBT concern.94 As we have shown, these laws authorize refusals by an ever-expanding universe of individuals and organizations who object to being made complicit in conduct they deem sinful.95 Typically, the laws authorize refusals without shielding those who seek care from material and dignitary harm. As a consequence, people are denied access to services to which they would otherwise be entitled and suffer stigma for their lawful reproductive choices.96

While advocates may have the political power to pass laws of this kind, the laws they enact do not conform to the principles that guide our religious liberties caselaw. When courts are involved, judges are concerned to structure religious accommodation in ways that prevent third-party harm—a tradition that is carried forward in Zubik as well as Masterpiece Cakeshop. In balancing religious liberty and other governmental interests, courts routinely approach accommodation in ways that are concerned about the impact on third parties.97

In stark contrast, lawmakers enacting healthcare refusal laws often make no provision for those the refusal may affect.98 Lawmakers may be indifferent or, worse yet, hostile to the rights of those the refusal may affect. In some cases, they may employ exemptions to deter the exercise of rights the law has only recently and fragilely come to protect.99

As we have discussed, we observe a striking difference between the treatment of religious exemptions in cases where courts have been involved and the approach to religious exemptions recently adopted by lawmakers acting without judicial oversight in the LGBT and healthcare contexts.100 In our years of work with American conscience law, we have been repeatedly impressed by the difference between legislated conscience exemptions of this kind and the tenor of judicial opinions on religious accommodation.

Many of the exemption statutes adopted in the LGBT and healthcare contexts were supported by movements opposed to LGBT equality and reproductive rights.101 These statutes were enacted to allow the expression of conscience, which for some was entangled with expressive objections to LGBT and reproductive rights.102 When judges supervise the enforcement of exemption statutes, they often act on instincts—whether constitutional, statutory, or simple expressions of fundamental fairness—that lead them to limit and structure accommodation so that individuals are not authorized to impose their religious beliefs on others who do not share those beliefs.

In some of these cases, the Constitution may impose limits on religious accommodation in order to secure guarantees of religious freedom, of liberty, or of equality. In many other cases, the principle at stake may be pluralism itself.103 As we have argued, an accommodation regime’s pluralism is measured not only by its treatment of objectors, but also by its attention to protecting other citizens who do not share the objectors’ beliefs.104

We can measure Masterpiece Cakeshop’s pluralism in the dual concerns of the opinion’s closing passage: to resolve disputes “without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”105

Douglas NeJaime is a Professor of Law at Yale Law School. Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. For helpful comments, the authors thank Michael Dorf, Linda Greenhouse, Joshua Matz, Robert Post, Micah Schwartzman, Mark Storslee, and Nelson Tebbe. For excellent research assistance, the authors thank Hannah Hussey.