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Why the Court's Momentous Term Matters: Freedom v. Equality


1 First, No. 1

Speaking at Georgetown Law about the Supreme Court’s upcoming cases, Justice Ruth Bader Ginsberg observed, “There is only one prediction that is entirely safe about the upcoming term, and that is it will be momentous.”

Today, that term opens. And for the first time since Justice Antonin Scalia's death, the Court begins the term at full strength. It will also be the first full term for the Court's newest justice, Neil Gorsuch, and perhaps the last for his former boss and the Court's most frequent swing vote, Justice Anthony Kennedy.

From free speech to data privacy, civil rights to presidential powers, the docket is full of potential blockbusters likely to produce sharply divided opinions. Here is a preview of the first potential blockbuster we’re paying attention to, which, coincidentally, concerns the First Amendment.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

The First Amendment guarantees that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Although “no law” may appear to admit no exception, such has never been the case from the founding through the present. Enter Masterpiece Cakeshop.

A Christian cake shop owner refused to bake a wedding cake for a same-sex couple. The couple filed a complaint, and the lower courts concluded that the baker violated a state law prohibiting discrimination based on sexual orientation. The baker appealed to the Supreme Court, arguing the state law violates his First Amendment rights of free exercise and free speech.

So here we are, in what is shaping up to be a classic case of freedom v. equality.

If the baker is right, does this necessarily also mean that a cake shop owner who sincerely believes in racial segregation is entitled to refuse service to a black couple with impunity? And if not, what’s the distinction?

Similarly, if the same-sex couple is right, does this necessarily also mean that the state can require the Catholic Church to admit women to the priesthood? And if not, what’s the distinction?

Why these questions matter is self-evident. How the Court will answer them, less so. How would you? Stay tuned for how the Court does, and for the next installment of 1 First where we preview another key case from this momentous term.

About 1 First

The U.S. Supreme Court is located at 1 First Street, NW, Washington DC. This blog, 1 First, will offer periodic observations about the Court, the questions it takes up, and the answers it provides.

About the Author

Tom Cummins is the founder of Potomac Litigation. He litigates complex cases in Virginia and the District of Columbia.

His recent briefs to the U.S. Supreme Court are available here and here, and the Court's decisions on those cases are available here and here.

His scholarship about the U.S. Supreme Court has been featured on SCOTUSBlog, among other places, and a sampling is available here and here.