The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law by Christopher R. Green and David Upham.
Like several other big First Amendment cases the Supreme Court will hear this year, Masterpiece Cakeshop is not really a First Amendment case. By its terms, the First Amendment restrains only “Congress” from making laws abridging “the freedom of speech” or prohibiting “the free exercise” of religion, but the Masterpiece case involves a state law. It is the Fourteenth Amendment, adopted after the Civil War, that restricts the states’ powers over religion or speech. Yet, as in last year’s Trinity Lutheran case, the Fourteenth Amendment has barely been mentioned in the briefing so far.