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British Journal of American Legal Studies British Journal Of Birmingham City School of Law BritishBritish JoJournalurnal ofof British Journal of American Legal Studies | Volume 10 Issue 2 10 Issue Legal Studies | Volume British Journal of American British Journal of American Legal Studies | Volume 7 Issue 1 7 Issue Legal Studies | Volume British Journal of American AmericanAmerican LegalLegal StudiesStudies VolumeVolume 107 Issue Issue 1 2 FallSpring 2021 2018 ARTICLES ARTICLES Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause Robert G. Natelson Marital Cakes and Conscientious Promises G. P. Marcar Toward Natural Born Derivative Citizenship John Vlahoplus RuleFelix by Frankfurter the Few in and the theFederalist Law Papers: An Examination Carl M. FeliceThomas IV Halper of the Aristocratic Preference of Publius Fundamental Rights in Early American Case Law: 1789-1859 Nicholas P. Zinos U.S.-UK FTA Negotiations: A Primer on Labor Agenda Ronald C. Brown The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization Prisonof the NatureShips of Truth Robert M.Jared Jarvis Schroeder ToActs Delegate of State, or State Redelegate: Immunity, Is Thatand Judicialthe Question? Review in the United States Thomas HalperZia Akthar BRITISH JOURNAL OF AMERICAN LEGAL STUDIES BIRMINGHAM CITY UNIVERSITY LAW SCHOOL THE CURZON BUILDING, 4 CARDIGAN STREET, BIRMINGHAM, B4 7BD, UNITED KINGDOM ISSNISSN 2049-40922049-4092 (Print)(Print) British Journal of American Legal Studies Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University. Deputy Editors Dr Ilaria Di-Gioia, Birmingham City University Dr Tara Quinlan, Birmingham City University Associate Editors Dr Sarah Cooper, Birmingham City University Prof Julian Killingley, Birmingham City University Dr Alice Storey, Birmingham City University Dr Amna Nazir, Birmingham City University Prof Jon Yorke, Birmingham City University Seth Barrett Tillman, National University of Ireland, Maynooth Editorial Team Leader 2020 Thomas Nicklin Birmingham City University Student Editorial Assistants 2020 Turan Avkesan Olga Krzyszton Jacob Morrow Editorial Board Hon. Joseph A. Greenaway Jr., Circuit Judge 3rd Circuit, U.S. Court of Appeals. Hon. Raymond J. McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL. Adjunct Professor of Law, The John Marshall Law School, Chicago, IL. Prof. Antonio Aunion, University of Castille-la Mancha. Prof. Francine Banner, Phoenix School of Law, AZ. Prof. Devon W. Carbado, UCLA, CA. Dr. Damian Carney, University of Portsmouth, UK. Dr. Simon Cooper, Reader in Property Law, Oxford Brookes University. Prof. Randall T. Coyne, Frank Elkouri and Edna Asper Elkouri Professor, College of Law, University of Oklahoma, Norman OK. Mark George QC, Garden Court Chambers, Manchester, UK. Prof. Carolyn Hoyle, Professor of Criminology, University of Oxford, UK. Prof. James Kousouros, CALS Visiting Professor, NY. Prof. Ian Loveland, City University London, UK. Prof. James Maxeiner, Center for International & Comparative Law, University of Baltimore School of Law, Baltimore, MD. Prof. Ruth Miller, University of Massachusetts, Boston, MA. Dr. Anne-Marie O’Connell, University Toulouse 1 Capitole. Prof. Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, MA. Dr. Stephen W. Smith, University of Birmingham, UK. Prof. Carrie Sperling, University of Wisconsin Law School. Prof. Clive Stafford Smith, Reprieve. Dr. Timothy Stanley, Rothermere American Institute, University of Oxford, UK. Prof. Adam N. Steinman, Professor of Law & Frank M. Johnson Faculty Scholar, University of Alabama, Tuscaloosa, AL. Prof. Russell Wheeler, The Brookings Institution, Washington DC. British Journal of American Legal Studies Volume 170 Issue Issue 1 2 FallSpring 2021 2018 CONTENTS Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause MaritalRobert G.Cakes Natelson and Conscientious ............................................................................................................................... Promises .............1 G. P. Marcar .....................................................................................................................................................201 Toward Natural Born Derivative Citizenship John Vlahoplus .................................................................................................................................................71 Rule by the Few in the Federalist Papers: An Examination of the Aristocratic Preference of Publius CarlFelix M.Frankfurter Felice IV. .............................................................................................................................................and the Law 217 Thomas Halper .............................................................................................................................................. 115 U.S.-UK FTA Negotiations: A Primer on Labor Agenda RonaldFundamental C. Brown Rights ............................................................................................................................................. in Early American Case Law: 1789-1859 245 Nicholas P. Zinos ............................................................................................................................................ 137 Prison Ships RobertThe Holmes M. Jarvis Truth: .............................................................................................................................................. Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth 281 Jared Schroeder ............................................................................................................................................. 169 To Delegate or Redelegate: Is That the Question? Acts of State, State Immunity, and Judicial Review in the United States Thomas Halper ...............................................................................................................................................335 Zia Akthar ........................................................................................................................................................ 205 Br. J. Am. Leg. Studies 10(2) (2021), DOI: 10.2478/bjals-2021-0004 Marital Cakes and Conscientious Promises G. P. Marcar* ABSTRACT The U.S. Supreme Court has recently been tasked with determining—both metaphorically and literally—whether in matters of marriage equality and religious freedom, those within society can have their cake and eat it too. This came to the fore in Masterpiece Cakeshop (2018). In most of scholarship which has followed, the respective parties’ rights in this case are parsed in terms of rights to religious expression and free speech (on the one hand), and a statutory right to non-discrimination (on the other). By approaching this matter through a primarily philosophical (rather than legal) lens, I aim to present a new perspective. Where cases involve same-sex marriage, it is argued that both sides are predicated upon religious or conscientious convictions. This is established through a philosophical argument, which examines the nature of the marital promise to love and seeks to demonstrate how this promise entails a characteristically religious sort of belief. KEYWORDS Masterpiece Cakeshop, Religious Freedom, Marital Love Promises, Conscientious Beliefs, Moral Anthropology CONTENTS I. Introduction: Masterpiece Cakeshop and the Importance of Religious Freedom .......................................................................... 202 A.The Discrimination Claim: A Question of Cakes ......................... 202 B.Justice Gorsuch and the Importance of Religious Freedom ........ 203 C. Different Cakes, Different Unions? Obergefell Revisited ........... 204 II. The Marital Promise to Love Another as an Exercise of Religious or Moral Belief .............................................................................. 205 A. The Promise to Love Another ...................................................... 206 B. The Promise to Love Another ...................................................... 209 C. The Promise to Love Another, Forever: An Intrinsically Religious Promise? ...................................................................................... 213 III. Conclusion ...................................................................................... 214 * G. P. Marcar is the Harold Turner Research Fellow at the Centre for Theology and Public Issues, University of Otago. He would like to thank the International Centre for Law and Religion Studies (BYU law), whose 2019 Fellowship program at Christ Church, Oxford was the genesis for this article. © 2021 G. P. Marcar, published by Sciendo. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License. 10 Br. J. Am. Leg. Studies (2021) I. Introduction: Masterpiece Cakeshop and the Importance of Religious Freedom In 2012, Charlie Craig and David Mullins were denied service by Jack Phillips of Masterpiece Cakeshop in Colorado. Mr. Craig and Mr. Mullins sought a cake (without specifying any particularised writing or decoration) in order to celebrate the advent of their lawful marriage in Massachusetts. The issue was heard by the Colorado Civil Rights Commission (“the Commission”).1 The Commission held that in refusing the couple’s order, Phillips had violated the Colorado Anti- Discrimination Act of 2014 (“CADA”), which prohibits any “place of business engaged in any sales to the public” from directly or indirectly
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