Barnette and Masterpiece Cakeshop: Some Unanswered Questions

Abstract

This symposium piece addresses three issues stemming from the Court’s Masterpiece Cakeshop case and that case’s relationship to West Virginia v. Barnette. First, it discusses the relationship between claims for exemption from laws of general applicability and as-applied claims. Second, it addresses the issue most discussed in the Cakeshop briefs and oral argument, but not ultimately resolved by the Court: what counts as compelled speech in the setting of provision of services such as custom-made wedding cakes? Third, it intervenes in the fascinating sidebar between Justice Kagan and Justice Gorsuch regarding the state commission’s refusal to sanction bakers who wouldn’t make cakes condemning homosexuality, and the relationship between that refusal and the commission’s deeming Jack Phillips in violation of state law by declining to make a custom cake for a same-sex wedding celebration.