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Barry McDonald: Same-Sex Wedding Cakes

National Law Journal op-ed on hybrid rights paradigm

January 24, 2018  | 1 min read

Professor Barry P. McDonald's op-ed, "Same-Sex Wedding Cakes: Why Hybrid Rights Paradigm Is Best Way Out of Thicket," has been published in the National Law Journal. The article considers why a free exercise of religion decision is a preferable way to balance the competing interests in the Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Excerpt of "Same-Sex Wedding Cakes: Why Hybrid Rights Paradigm Is Best Way Out of Thicket":

So why would a free exercise of religion decision be a preferable way to balance the competing interests in this case? First, allowing a provider with sincere religious objections to decline to provide an expressive product or service would narrow substantially the potential field of conflict (and circumstances under which same-sex couples could be denied service).

Second, the court already has precedent to support such a path that is not only anchored in two of the most fundamental rights in our Constitution (freedom of speech and religion), but recognizes that same-sex couples cannot be refused service if there are no alternative providers reasonably available to meet their needs. Lastly, the court also has precedent that permits the subtle policing by courts of “fringe” religious beliefs being asserted as a pretext to permit rank discrimination.

The complete article may be found at www.law.com (registration may be required)