In a victory sure to encourage discrimination on the ground of sexual orientation the U.S. Supreme Court today sided with a Colorado baker who refused to make a cake for a same-sex wedding. Initial reports describe it as a narrow ruling, but nonetheless big.

The Supreme Court said a Colorado commission’s finding that the baker had violated the state’s non-discrimination law amounted to a violation of the baker’s religious freedom.

The vote was 7-2 to set aside the commission’s ruling, on the narrow ground that the baker didn’t get a neutral decisionmaker to consider fully the baker’s religious objection.  Some concurring opinions suggest this case wasn’t meant to decide the broad issue of using religion as a pretext to discriminate. For example, liberal Justices Stephen Bryer and Elena Kagan concurred in the finding, but said it was narrow. The opinion itself said: “it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause, and its order must be set aside.”

The decision is potentially monumental. Hard to see how this won’t at least encourage discrimination of all sorts by those who cite religion as a reason, a protection already afforded in Arkansas law.

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Justice Anthony Kennedy, who’s been a pivotal vote on other gay rights cases, wrote this opinion.

Kennedy wrote that the question of when religious beliefs must give way to anti-discrimination laws might be different in future cases. But in this case, he said, Phillips did not get the proper consideration.

“The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws,” he wrote. “Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here.”

Kennedy also wrote:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

The ACLU tried to temper reaction, but I think as a practical matter, if not legal, this decision will be trumpeted more by those who want to discriminate.


Here’s the Human Rights Campaign’s spin:

Here’s a tough take from the liberal Think Progress:

Masterpiece is the jurisprudential equivalent of a Bari Weiss column. It bends over backwards to see chauvinistic conservatives in the most favorable light, while completely missing the broader, more important issues at stake in the case. The opinion reads as if the central matter at issue was not so much about resolving a conflict between religious bakers and same-sex couples as it was about an urgent need to police the tone of civil rights commissioners.

The holding of the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission — to the extent that the case holds anything at all — is that conservative Christians are special snowflakes who have to be given a safe space. And that’s…about it. States remain free to enforce civil rights laws — including civil rights laws that the religious right finds objectionable — but when they speak of religious conservatives they must do so politely and without accusing them of harboring bad motives.

Many other cases are pending. The question of whether providers of commercial services can invoke their bias to deny public services to this certain class of customer remains unanswered.

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