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Title : Masterpiece Cakeshop is not a judicial masterpiece.
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Masterpiece Cakeshop is not a judicial masterpiece.

It's kind of a mess! It's the Cake Wrecks of opinions...



I'm reading Richard A. Epstein at SCOTUSblog, "The worst form of judicial minimalism — Masterpiece Cakeshop deserved a full vindication for its claims of religious liberty and free speech." And he wants something CLEAR!

Judicial minimalism may sound nice in theory. But where the court is faced with a clear question of high principle, the whole nation loses when it is handled in a muddled and ham-handed way. The Cakeshop fiasco needs to be put behind us. A decision that gives blanket exceptions for religious liberty on grounds of sincere belief does all that is needed to protect religion while leaving the basic structure of CADA intact. Pity that this Supreme Court decision opens yet another chapter in the endless culture wars.

In art and architecture, minimalism gets you to something sleek and simplified and instantly comprehensible. You get the opposite from judicial minimalism, which holds back from stating big clear rules and makes a special case out of this one case, resolves it, and leaves us on our own to figure out how like or unlike it is to the next case and whether this or that factor ought to tilt the outcome another way.



It's not aesthetically pleasing! Epstein offers a clear rule that he wishes the Supreme Court would adopt: "blanket exceptions for religious liberty on grounds of sincere belief." That's at the opposite end of the spectrum from the clear rule that Justice Scalia articulated in Employment Division v. Smith, which Epstein calls "one of the late Justice Antonin Scalia’s worst opinions."

Scalia liked clear broad rules, and his rule — which is the Court's most important statement of the meaning of the Free Exercise Clause — is that the government can hold everyone — even those with religious compunctions — to "neutral, generally applicable" rules.

Smith was not judicial minimalism. And Masterpiece Cake doesn't question the big general rule of Smith. What Masterpiece Cake does is find a lack of neutrality: The government didn't get into the big safe harbor Smith's clear rule because it expressed hostility to religion. Don't do that, government, and you'll be out of the exception and into the big, non-minimalist rule.

So what the Court can't tell government exactly when hostility will be detected? Government is tasked with suppressing contempt for religion and making it seem as though religious people get treated with neutrality. That's the fuzziness Masterpiece Cake left us with, but that fuzziness was always there around the edges of Smith.

Don't let Epstein bamboozle you. He wants to flip Smith. And Antonin Scalia is not here to defend his legacy.

Thus articles Masterpiece Cakeshop is not a judicial masterpiece.

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