Supreme Court Tries To Have Its Cake And Eat It Too…

Eric J Scholl

Jun 5, 2018·3 min read

We’re not trying to be flippant here. It just took us a while to decipher this ruling. And the oversimplification of a lot of the reporting as a huge setback for the LGBTQ+ movement (which it may be, but also may not be) didn’t help.

We’re not legal scholars, so we made an attempt to search out and aggregate information from those we trust, and then distill it down:

• The Court did rule in favor of the baker in Colorado, Jack Phillips, who refused to bake a cake for a same-sex couple saying it went against his religious beliefs.
• The final vote was actually 7–2. Not the typical 4–3 Conservative/Liberal split.
• The reason it’s being referred to as a “narrow ruling” is it’s not intended to set a broad precedent to be applied willy-nilly in other, similar cases. In the majority opinion, written by Justice Anthony Kennedy, he explains in this case, the Colorado Civil Rights Commission (in particular, one Commissioner) exhibited “some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated [the cake maker’s] objection.”
• At the same time, Kennedy writes: “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.”
• Just as a side note, it was Justice Kennedy who also wrote the majority opinion in 2015 that made same-sex marriage legal nationwide. That vote was 5–4.
• Here’s how UC Irvine Law Professor Rick Hasen explains it in a Tweet:

• Here’s a link to an interesting discussion on Scotusblog, even though it ultimately argues the ruling should’ve been more decisive in favor of the cake maker, on the grounds of religious liberty and free speech. Kennedy’s ruling, however, did not discuss free speech much at all.
• The ruling also revealed some serious feuding between the newest Justice, Neil Gorsuch, and Justice Elena Kagan. Even though she also voted in favor of the decision, Kagan wrote:

“As Justice Gorsuch sees it, the product that Phillips refused to sell here — and would refuse to sell to anyone — was a ‘cake celebrating same-sex marriage’. But that is wrong. The cake requested was not a special ‘cake celebrating same-sex marriage’. It was simply a wedding cake….”

• Problem is, even if this ruling has no traction, it takes a long time for cases to reach the Supreme Court. So the “further elaboration in courts” Kennedy refers to might be long in coming. This dispute started in 2012, three years prior to the ruling that legalized same sex marriage nationally. So despite Kennedy’s warning not to aggressively do so, the decision will undoubtedly be used in other cases of the same type, in the absence of any other ruling by the Court.
• An earlier ruling by the Colorado Court Of Appeals, which has now been overturned, made the most common sense to us. It found that people would understand the baker was not making a personal statement with the cake, and he was not restrained from privately saying anything he wanted about same-sex marriage. But common sense doesn’t always win out in court.
• In effect, the Court sidestepped this one, leaving it up to lower courts to figure out what to take from it, if anything at all.