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Brian M. Miller

Publication Date

3-2021

Document Type

Article

Abstract

In December of 2017, hundreds of protestors descended on Washington, D.C., from all over the United States. The crowds converged on the blocks surrounding the Supreme Court of the United States, where onlookers might have spotted signs reading “It’s Not About the Cake,” and “Open to All,” rising from one side of the crowd, and signs reading “Serves All People, But Can’t Create All Art,” and “Justice for Jack” rising from the other side. That morning the Supreme Court heard a case about a Colorado cake shop owner who, because of his religious convictions, refused to create a cake that was to be used at a wedding of two men. One small-scale business transaction (or lack thereof) sparked protests and heated debate across the entire country. Why?

The reasons are obvious to anyone familiar with United States religious freedom jurisprudence. The Supreme Court was asked to decide whether the United States Constitution gave Jack Phillips the right to be exempt from a Colorado law that mandated he serve the wedding cake to the gay couple. The Court’s answer to that question not only would decide a dispute between one businessperson and one couple, but also would set the tone for all future claims for religious exemptions nationwide. ...

This Article proceeds in three parts. Part I provides a brief history of local governments, starting in pre-Revolution England and the colonies, and describes how local entities often preexisted the central government as the primary means of self-government, including on matters dealing with religious practice. The history reveals that, contrary to modern assumptions, local governments were not always seen as subunits of states, but instead, were often treated as voluntary quasi-private associations that possessed considerable power as a matter of custom. Part I continues by demonstrating why that historical honor is well-deserved—that local governments do an especially good job at dealing with matters affecting religion from a democratic and utilitarian perspective. Part II applies that historical-theoretical perspective to recent Supreme Court cases. It concludes that the Supreme Court has wrongly failed to identify the “level” of government as centrally important in religion cases. It critiques recent cases that limit government discretion under the banner of religious free-exercise, and cases that appear to give substantial power to the states and the federal government on the Establishment Clause side. Part III provides a smaller-scale, short-term solution. It first concludes that, despite the Court’s overall ignoring of the value of local autonomy, the variety of balancing tests the Court has employed to address these disputes give lower courts some limited room to consider the nature of the government entity when considering whether a government action runs afoul of the First Amendment’s religion clauses. Next, Part III recounts the difference between facial and as-applied challenges and argues that the preference for as-applied challenges articulated by the Supreme Court should be especially strong when a local government action is challenged. Relatedly, it then considers the principles undergirding the law of remedies and contends that courts considering local government actions that affect religious interests should, when possible, prefer narrow, party-specific remedies like damages and individualized exemptions over broader remedies like complete invalidation of a law.

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