Date of Award
Master of Laws (LLM)
This thesis aims at examining the validity of free speech claims for religious exemptions on the one hand and reviewing the Masterpiece Court's holdings on the current complex entanglement of religious exemption theories, on the other hand; and finally, it also provides a possible suggestion for co-existing between two constitutional values without an all-or-nothing solution.
As to the free speech argument, the Court would likely decide that a compelled speech argument should succeed if, and only if, the vendor’s good or service is expressive under the Free Speech Clause. For a baker, the Court would protect making a custom cake bearing messages through images or texts as a symbolic expression, but it would not protect making a generic or artistically decorative cake either as a pure or symbolic expression.
As to the free exercise argument, this thesis insists that this is a permissible rejection within the scope of the vendor's product options because it does not violate full and equal enjoyment, which could be interpreted as being the customer's equal access to goods and services based on the right of vendors to choose what to sell, as Justice Kagan stated. Furthermore, it argues that procedural-equal treatment should be given equal access to the vendors, including the vendors who decline to provide their goods and services due to religious and secular reasons when refusal is permissible. The differences between discriminatory declination and permissible rejection rely on whether the vendor could supply his goods or services to all other customers; in other words, the refusal is within the right of vendors to choose what to sell. Here, the official or government agency could have the discretion to determine whether the vendor’s refusal could be a discriminatory or conscientious declination. If they did not give the vendor opportunities to consider the reasons for refusals in a principled rationale, it could constitute a substantial burden on religious believers by deprivation. And then, the Supreme Court’s ruling in Masterpiece should be understood to require procedural-equal treatment, applicable to religious and secular vendors alike.
Kim, Hwi Won, "Masterpiece's Equal Treatment of the Religious and Expressive Freedoms Under the First Amendment" (2020). Maurer Theses and Dissertations. 76.