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Masterpiece Cakeshop Ruling Dodges the Big Question

June 4, 2018 in Economics

By Walter Olson

Walter Olson

In the end, the Masterpiece Cakeshop ruling was narrow
without being close. Justice Kennedy won over liberals Elena Kagan
and Stephen Breyer into a 7-2 majority to rule that Colorado had
improperly shown contempt for Jack Phillips’s religious views while
considering the case against him brought by wedding-cake hopefuls
Charlie Craig and Dave Mullins. By deciding the case on those
grounds, Kennedy sidestepped the broader question that has
dominated public discussion of the case all year: When does it
violate the First Amendment to require business people to accept
work they believe implicates them in expression contrary to their
beliefs? Dodged today, that question will assuredly be back in

Despite early melt-the-screen reactions from some on the left
(bake a take as fast as you can!) Kennedy specifically did not
carve out any new exceptions from state LGBT anti-bias measures; he
even took pains to praise that body of law. Instead, his message to
Colorado was: Go back and run the process again without showing
animus toward people’s religious beliefs.

SCOTUS hones in on
Colorado’s contempt for Jack Phillips, not the First Amendment and
free expression.

As he documents in his majority opinion, at least two members of
the Colorado Civil Rights Commission had used official proceedings
to make clear their disdain for the baker’s convictions. One had
dismissed an argument as “one of the most despicable pieces of
rhetoric that people can use to—to use their religion to hurt
others.” Overall, Kennedy wrote, Phillips was not given “the
neutral and respectful consideration of his claims” to which he was
entitled. Or as Justice Gorsuch put it in a pithier concurrence,
“no bureaucratic judgment condemning a sincerely held religious
belief as “irrational” or “offensive” will
ever survive strict scrutiny under the First Amendment.”

Justices Kagan and Breyer agreed that the proceedings were
tainted by anti-religious animus—a relatively easy concession
compared with the other ways Phillips might have won—but the
liberals did nothing to hide their view that the state would win a
future case on these facts if it went back and did things in proper
form. Their concurrence even provides a little road map for the
state to get there by tinkering with its legal theory. It’s true
that in separate concurrences, Justices Gorsuch, Alito, and Thomas
express more eagerness to get to Phillips’s substantive claims. But
that adds up to three: there is no sign at present that the court
is one vote away from declaring a sweeping or even narrow win for
the next baker in a similar situation.

The Ginsburg and Sotomayor dissent deserves special notice. They
argue that for the proceedings of a state …read more

Source: OP-EDS

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