Caleb Acker has posted The Torcaso-Masterpiece Rule "As Such" on SSRN. Here is abstract:
This paper makes the simple assertion that the Supreme Court’s recurring dicta, “a law targeting religious beliefs as such is never permissible,” has been realized as a holding in two decisions, Torcaso v. Watkins and Masterpiece Cakeshop v. Colorado Civil Rights Commission. In both cases, the Court did not apply strict scrutiny when it struck down the respective government actions. It simply struck them down. That is because targeting religious beliefs as religious beliefs, the most egregious form of government targeting of religion, is automatically unconstitutional. Despite the Court’s blatant twice refusal to use strict scrutiny in cases concerning the targeting of religious belief as such, the application of this rule has garnered little recognition in the legal academy. I argue that (1) this dyad is a legitimate enclave of First Amendment jurisprudence as situated in the Court’s holdings throughout history; (2) the rule holds post-Fulton and may be applied in the future; and (3) the rule should be extended to all government targeting of religious action and conduct, because the Cantwell Court’s distinction between action and belief is utterly wrong.
