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Wednesday, December 06, 2017

Masterpiece Cakes case and freedom of and establishment of religion

Opening clarification: I have not the slightest objection to same-sex marriage and hope to attend one, co-starring my daughter, someday.

Reading live blog accounts of the Masterpiece Cakes argument at the U.S. Supreme Court, it seemed (though not having attended, I could certainly be wrong) that there was insufficient exploration of two First Amendment issues other than free speech: freedom of religion and, especially, establishment of religion.

If the state may say that only those whose religion accepts same-sex marriage may practice certain professions, isn't that not only an infringement of the freedom to practice some religions, but a broad-brush state establishment of religion via exclusion of some religions?

Those arguing on the baker's behalf, I got the impression, did not defend the right of a makeup artist or hair stylist to decline same-sex wedding business. But, as Justice Kennedy suggested out in a complex-cake hypothetical, actually needing to be present at a service is different from selling a product or providing a service months and miles away. Would Oregon allow a makeup artist or hair stylist to say, "I am not available for on-site services for same-sex weddings -- you must come to my shop and then travel to the wedding venue"? I have my doubts.

What about a Muslim hair stylist who believes that no woman, or at least no woman claiming to be Muslim, should appear in public in front of men outside her family with her hair showing? Can she be compelled to provide her services to a woman self-identifying as Muslim who intends to be married in the middle of Harvard Square with her husband's frat buddies as his attendants and all sorts of male strangers walking past? If so, is the state infringing on her freedom of religion and/or establishing less restrictive forms of Islam over more restrictive ones?

Feel free to discuss these issues in the comments.

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