Doric Columns Are Not Falling: Wedding Cakes, the Ministerial Exception, and the Public-Private Distinction

James M. Oleske Jr.

The center is holding. Our basic understanding of the public-private distinction—an understanding that underlies both the church-state and civil-rights settlements in America—remains intact. It remains intact despite being challenged in recent years by a series of novel arguments nurtured in the academy and deployed by high-profile political figures. Some of those arguments would dramatically curtail religious accommodations, even for churches. Others would dramatically expand religious accommodations, most notably from civil rights laws in the commercial marketplace. And yet others would deliver a libertarian realignment that would render such marketplace accommodations unnecessary. Any one of those results would represent a significant shift in the “Overton Window,” which, in the constitutional context, we might better call the “Balkin Window.”

Not surprisingly, the far-reaching arguments mentioned in the previous paragraph have generated anxiety among religious liberty advocates and within the civil rights community. In addition, commentators coming from both perspectives have raised alarm about other supposed “changes” and “emerging” developments that, in truth, are merely new applications of long-settled principles. Taken together, the truly radical arguments and the perceived-to-be-radical trends have contributed to a growing sense that fundamental protections—for religious liberty, equal citizenship, or both—are in jeopardy. The actual threat, however, has been largely overstated. Only one genuinely novel argument can claim even a partial victory, and that victory was neither constitutionally mandated nor based on circumstances that are likely to be replicated. Indeed, to date, the arguments for sweeping change are most notable for their failure to convince judges, legislators, and the general public to depart from ingrained instincts about the contexts in which the government can and cannot demand adherence to nondiscrimination norms.