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Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."

CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present and defend three proposals for resolving the wedding vendor controversy and for clarifying and enhancing the law of religious freedom. First, the Supreme Court should reject the wedding vendors’ compelled speech argument even on the assumption that the vendors’ conduct is expressive. Second, the Court should repudiate the restrictive free exercise doctrine of Employment Division v. Smith, which has not settled the law but which instead has been undetermined by ill-defined exceptions and by congressional and state law developments. And third, applying its earlier, pre-Smith interpretation of the Free Exercise Clause, the Court should find strict scrutiny satisfied and therefore should reject the vendors’ free exercise claims. My second and third proposals, taken together, would permit the wedding vendor controversy to be framed and resolved transparently, as the conflict of competing values that it is: equality on the one hand, religious freedom on the other.



Publication Date



Panthéon-Assas editions


Paris, France


Constitutional Law, Constitutional Interpretation, First Amendment, Free Speech Clause, Free Exercise Clause, Religious Freedom, Religious Freedom Restoration Act, Equality, Discrimination, Animus, Sexual Orientation, Same-Sex Marriage, Masterpiece Cakeshop, Employment Division v. Smith


Constitutional Law | Family Law | Law | Law and Society | Sexuality and the Law



Guglielmi, Gilles J., ed. Les mutations de la liberté d'expression en droit français et étranger (Paris: Panthéon-Assas editions, 2021).

Formerly, the protection of rights and freedoms was conceived as having to be ensured in priority against the public authorities. Today, the greatest dangers to freedom come even more from a multitude of powers and private actors. Positive law has long been concerned with this from the angle of criminal and civil law, because civil liberty is protected, first of all, by laws. But it happens that the protection of rights and freedoms is deficient, because the legislator does not have the competence to act - a frequent case in structures made up of States - or because laws exist, while being insufficient, incomplete, even incomplete.

In such situations, what can judges do? What methods do they use in the spheres where citizens live side by side with no direct relationship with political power: social and professional life? Are these methods different depending on whether they are judges of private law or judges of public law? Do constitutional judges operate differently? Should a distinction be made according to whether the legal system to which they belong belongs to countries of statutory law or to countries of common law?

Also includes an Introduction by Elizabeth Zoller, "La liberté d'expression d'un siècle à l'autre."

Complete bibliographic citation available HERE

Copies available in the Jerome Hall Law Library, KJV 4210.A67 U55 2019

Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond