When Does Balancing Justify Religious Exemptions? The Case of Masterpiece Cakeshop v. Colorado Civil Rights Commission

Res Publica https://doi.org/10.1007/s11158-025-09715-0 When Does Balancing Justify Religious Exemptions? The Case of Masterpiece Cakeshop v. Colorado Civil Rights Commission Samuel Cole1 Accepted: 28 February 2025 © The Author(s) 2025 Abstract This paper analyses the moral structure of claims to religious exemptions that appeal to the logic of balancing, or the idea that one’s higher-order interests are unequally burdened relative to other parties’ higher-order interests and this burden requires easing through exemptions. In particular, I discuss whether the logic of balancing can justify a religious exemption in an idealised version of Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case before the Supreme Court of the United States involved religious bakery owners claiming for a religious exemption from anti-discrimination law in order to refuse service to a same-sex couple of customers seeking a wedding cake for their wedding. I consider two kinds of possible interest that could ground balancing in this case: integrity-preservation and equal-opportunity. I conclude that neither can. Keywords Religious exemptions · Equality of opportunity · Integrity · Discrimination · LGBT rights · Equality Introduction Consider the following case (Quong 2006, p. 64): Police Force: Jonah is an Orthodox Jew and would like to become a police officer. The police force requires police officers to work a certain number of Saturdays per month. This conflicts with Jonah’s religious commitments which require him not to work on the Sabbath. Meanwhile, Jeff is a liberal Protestant and has no objections to working Saturdays.1 1 This is still a legal exemption because the law empowers Jonah’s employer to set the duty rota at their discretion. * Samuel Cole 1 Faculty of Philosophy, University of Cambridge, Cambridge, UK Vol.:(0123456789) S. Cole This sort of case will, I think, generally (though perhaps not universally) elicit intuitions in favour of granting a religious exemption to Jonah—that is, Jonah should be exempted from the requirement to work Saturdays.2 Of those readers who agree that an exemption ought to be granted to Jonah, they may feel that this is because Jonah faces an unequal burden on his pursuit of a conception of the good, or his set of commitments, relative to Jeff and his commitments. Furthermore, readers may think that this unequal burden amounts to a morally objectionable inequality in Jonah’s free and equal standing as a citizen compared to Jeff. If I am right about this, Police Force illustrates the force of a certain kind of justification for exemptions to generally applicable laws known in the literature as ‘balancing’.3 As I will characterise it, balancing justifies exemptions to ease an unequal burden which the law imposes on a citizen’s (or group of citizens’) commitments relative to other citizens’ commitments or interests. Crucially, balancing justifies exemptions when and because those unequal burdens on commitments constitutes threats to the commitment-holders’ free and equal standing as citizens. By equalising those burdens, an exemption to a generally applicable law is justified.4 This paper investigates balancing in connection with a specific case. Same-Sex Wedding Cake: A bakery owned by religious individuals wishes to politely deny service to a same-sex couple seeking a wedding cake for their wedding, thereby seeking exemption to current LGBTQ+ anti-discrimination law. The vendors are not motivated by a belief that LGBTQ+ people are less than free and equal citizens. Rather, the vendors hold religious beliefs that God has ordained marriage as only a heterosexual union. They strongly feel that by providing a cake for a same-sex marriage they would compromising their religious beliefs about marriage. There are other nearby bakeries that would provide an equally suitable wedding cake at similar cost. This paper investigates whether balancing can justify an exemption in Same-Sex Wedding Cake. It is an idealised version of Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and other similar cases that have gained notoriety across jurisdictions globally. Masterpiece has become a focal point for both LGBTQ + rights and religious freedom activism (Lopez 2017) and is probably the most famous example of a religious exemptions case in recent times. It therefore merits attention by itself. Moreover, as Billingham (2017, p. 2) notes, many courts in the United States and Europe use balancing-style tests to adjudicate claims for exemptions. Political philosophers therefore ought to be interested in the moral structure of balancing claims for exemptions, and examining Same-Sex Wedding Cake may shed light on this. 2 It is plausible to think that the exemption depends on whether Jonah is willing to work overtime to make up for the lost Saturdays, so there is no unfair ‘cost-shifting’ onto other police officers. 3 E.g. Patten (2017, p. 205). Balancing is not the only approach to religious exemptions. A threshold approach suggests that if the burden on citizens’ relevant interests or commitments is great enough in absolute terms, it ought to be relieved. 4 When Does Balancing Justify Religious Exemptions? The Case… To that end, this paper considers two sorts of balancing arguments that claimants for an exemption in Same-Sex Wedding Cake could make. These arguments each appeal to a different interest or value that purports to link together the burdens citizens face on the satisfaction of their commitments with their equal standing or status as citizens, such that unequal burdens constitute or imply an inequality of status or standing. This paper therefore provides new analyses of the internal logic of balancing. The first value is the interest in not being compelled to violate one’s integrity. The second is equal opportunity to combine one’s integrity-protecting commitments with employment. Both arguments, then, appeal to the citizen’s interest in integrity, albeit in different ways. After outlining the moral structure of a claim for a religious exemption that appeals to balancing logic in Sects. “The Moral Structure of a Balancing Claim for a Legal Exemption” and “A Challenge to the Balancing Approach”, I present an account of integrity’s importance in Sect. “Integrity’s Importance” that explains how balancing claims can get off the ground in the first place. I then move to assessing the integrity-preservation and equal-opportunity cases for granting an exemption in Same-Sex Wedding Cake, in Sects. “Are the bakers compelled to violate their integrity?” and “Is the equal opportunity of the bakers burdened?”. I argue that a religious exemption should not be granted in Same-Sex Wedding Cake. The Moral Structure of a Balancing Claim for a Legal Exemption I will characterise balancing, as a justification for exemptions to laws, in the following way.5 Balancing involves two sets of parties. First, there are the claimants who seek relief (...truncated)