On Monday morning, the Supreme Court put off, for a second time, the decision whether to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, but the core of the issue is unlikely to remain unresolved for long. The case is just one of a number of disputes in which small-business owners have refused to provide their usual services—cakes, flowers, photography, or marriage venues—to same-sex couples for their weddings, notwithstanding state or local laws forbidding discrimination on the basis of sexual orientation. The venders, usually sole proprietors, have argued that same-sex marriage offends their religious convictions, and that the anti-discrimination laws therefore violate their First Amendment rights, either by compelling them to engage in speech they don’t agree with—forcing them, in their attorneys’ words, to “honor,” “celebrate,” or “participate in” a same-sex marriage—or by interfering with their “free exercise of religion.”
The particulars of these cases, however, suggest that they are more complicated than that, William Eskridge, Jr., a constitutional-law professor at Yale Law School, said in an interview. Eskridge acknowledged being torn, inasmuch as he describes himself as both “openly gay and openly religious.”
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