The First Amendment to the United States Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The inherent tension between these two phrases was at play in Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577 (U.S. June 26, 2017), in which the Court held by a 7-2 vote that Missouri violated the Free Exercise Clause when it categorically denied a church the opportunity to participate in a grant program to improve the playground for its daycare center. The case provides something of a judicial Rorschach test because how the issue is framed in this context will determine the outcome. The facts are
As I recently noted, on June 26, 2017—the anniversary of three major gay rights cases: Lawrence, Windsor, and Obergefell—the United States Supreme Court granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111. Having read the petition and responsive briefs, it would appear that the case has the potential to undermine anti-discrimination laws in the guise of protecting free expression and religion. The facts are not complicated. In 2012, Charlie Craig and David Mullins planned to get married in Massachusetts and hold a reception in Colorado. Joined by Craig’s mother, the couple went to the petitioner’s shop and explained to owner Jack Phillips that