In 2018, the United States Supreme Court decided a case called Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The question the Court was weighing is whether an individual’s free exercise of religion or freedom of speech under the First Amendment would be violated if he was forced to bake a cake for a same-sex wedding. In their decision, the Court determined that the Colorado Civil Rights Commission did not act neutrally with Petitioner when applying the Colorado Anti-Discrimination Act and remanded the case back to the lower court. An unsettling development, however, came in Justice Gorsuch’s concurring opinion wherein he attempts to otherwise neutral state antidiscrimination laws. Justice Kagan’s concurrence, meanwhile, spells out simply and concretely how to maintain established precedent set by Smith v. Employment Division (1990) by enforcing a generally applicable and valid law in the public marketplace. She concluded in this case, however, that the Civil Rights Commission must treat religion neutrally, which it failed to do. Our country’s history is defined by the tension between individual rights and the common good. Tracing this history from our origins, religious liberty and Enlightenment philosophies act upon one another, exposing their weaknesses and their darker sides. Human nature, left unregulated, is evil. Our history shows this. For every step we take forward, promoting liberty, we fall back again. This is why Justice Kagan’s concurrence must stand.

Keywords: Free Exercise Clause, Public Accommodations, Masterpiece Cakeshop