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Kalish: Cakeshop Ruling

On Monday the Supreme Court issued its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission. People have been watching this case for years. The question was whether a religiously-devout baker could refuse to bake a wedding cake to celebrate the marriage of a same-sex couple. And it’s not the only case of its kind. The same question has arisen about florists and photographers.

While most understand the question as a religious one, the strongest arguments to arise in the courts have actually centered on free speech. Specifically, the argument is that creating a custom cake or taking a beautiful wedding photo is artistic expression that can’t be compelled without violating the First Amendment.

As we saw during oral arguments, it’s an extremely difficult question. No-one seemed comfortable with all the line drawing this case seemed to require. If you accept this Free Speech argument, whose work then qualifies as “artistic expression”?

And there are implications … on both sides! If people can refuse service to customers based on forced expression, imagine the Pandora’s Box for anti-discrimination laws! On the other hand, do we really want a ruling that would require a gay artisan to make goods for the Westboro Baptist Church?

Unfortunately, Monday’s ruling resolved none of these questions. As foreshadowed during oral arguments, Justice Kennedy found a way out of what was clearly becoming an intractable mess.

Instead of addressing whether business owners can refuse service based on either free speech or the free exercise of religion, Justice Kennedy convinced six other Justices to shift the question to something more easily resolvable: whether the panel that first held formal hearings in the case showed appropriate respect for the baker’s religious beliefs.

So instead of deciding whether the baker behaved permissibly under the First Amendment, the Court decided whether the Commission behaved permissibly under the First Amendment. And the Court concluded it had not.

Based on panelists’ statements and the fact that the Civil Rights Division had handled other bakery cases differently, the Court said that the Commission had shown hostility towards this baker’s beliefs. In short, the Commission failed to weigh the case in the religiously neutral way the Constitution demands.

So, yes. The Court ruled for the baker. But no, the Court did not say the baker had a constitutional right to refuse service. We’re still going to have to wait for that answer.