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Brigham Young University Prelaw Review

Keywords

constitutional law, rights adjudication, strict scrutiny, fundamental rights, Masterpiece Cakeshop v. Colorado Civil Rights Commission, rational basis test, intermediate scrutiny, proportionality test, incorporated rights

Abstract

The Supreme Court's current system for rights adjudication is insufficient in cases where both sides feel that a fundamental right has been violated, such as Masterpiece Cakeshop v. Colorado Civil Rights Commission. To overcome this insufficiency, I argue that the Court should implement a new test that is a modified combination of the Supreme Court's strict scrutiny and the test used internationally for rights adjudication--the proportionality test. I call this new test the "Incommensurability Test" and explain how it works and why it is beneficial for rights adjudication in the United States. Applying the "Incommensurability Test" would enable the Court to uphold the American ideal of fundamental rights while ensuring an equitable holding is reached.

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