The recent wave of popular and academic commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. Masterpiece was held out as a case that was finally going to explain and resolve the conflicts between free expression, free exercise, and discrimination that were coming up again and again in the lower courts. But Justice Kennedy, the critical consensus went, avoided reaching many of the main First Amendment issues in the case and had instead ruled narrowly, giving us a prime example of"judicial minimalism:•
This assessment may be far too generous. In our short Article, we make the case that Masterpiece is a flawed decision because of its fundamental incompleteness, not its minimalism. Despite being held out as an opinion on religious liberty, Kennedy's decision is cursory on the baker's religious beliefs and how they have been burdened-a perhaps forgivable sin-but then simply omits any discussion of whether the state interest might outweigh the baker's religious freedom-a less forgivable sin. The failure to do any balancing makes the religious liberty aspect in Masterpiece unfinished. Indeed, Masterpiece fails to follow the steps that Justice Kennedy himself had set out in his previous opinions on religious liberty. And this leads us to surmise that Masterpiece may not be a religious liberty decision at all, but one about the violation of the baker's due process rights. If this was the case, however, the correct resolution would be not a win for the baker, but a remand for a new hearing (as Justice Kennedy had himself suggested in other opinions): a procedural remedy for a procedural flaw .. But Kennedy doesn't take this route, either. In essence, Masterpiece is not a narrow or minimalist opinion, but rather a collection of false starts, none of which ofter much insight or illumination on the areas of law they purport to address.
Chad Flanders & Sean Oliveira. An Incomplete Masterpiece. 66 UCLA L. REV. DISC. 154 (2019).