In Obergefell v Hodges Justice Anthony Kennedy wrote for a majority holding that samesex couples enjoy a constitutional right to marry as part of substantive due process Yet in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission his majority opinion held that the Free exercise Clause invalidated government sanctioning of a baker who had refused to bake a cake for a samesex couples wedding reception In both cases the Court reasoned that the government must maintain neutrality when confronted with competing viewpoints The Masteriece Cakeshop Court concluded the state Civil Rights Commission had violated this requirement by impugning the bakers claim that his religious beliefs justified discrimination against LGBTQ individuals But the Courts demand for government neutrality was wrongheaded In such cases religious freedom and LGBTQ rights clash Rather than attempting to enforce a specious government neutrality the Court should attend to the needs of democracy Many theorists of pluralist democracy emphasize its processes such as voting but democracy also requires certain substantive preconditions if it is to exist and function One cannot even conceptualize pluralist democracy without accounting for the political community Who belongs and participates To protect the operation of democracy to preserve its substantive preconditions at least one issue must be taken off the table Namely all individuals regardless of subculture or societal grouping must be treated as full and equal citizens in good standing This issue can no longer be open to democratic debate But discrimination against a marginalized group or its members such as LGBTQ individuals inevitably undermines the standing of that group and its members in the political community Therefore discrimination against individuals even if arising from religious beliefs cannot be deemed of constitutional value
Feldman, Stephen Matthew, "Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights" (2019). Faculty Articles. 140.