On Monday, the Supreme Court ruled in favor of a Colorado baker who attracted national attention for refusing to a bake a wedding cake for a gay couple.
The decision—which may disappoint some LGBT advocates—is narrow in its application. As the New York Times notes, the majority decision doesn’t explicitly allow businesses to discriminate against gay men and lesbians on First Amendment grounds. Rather, the justices maintain that Jack Phillips, owner of Masterpiece Cakeshop, had been unfairly punished by a local body on religious grounds.
Justice Anthony M. Kennedy, a Ronald Reagan appointee, penned the opinion condemning the Colorado Civil Rights Commission for showing undue hostility to Phillips over his Christian faith. At the same time, writes the Times, Kennedy reaffirmed protections for LGBT rights.
“The outcome of cases like this in other circumstances must await further elaboration in the courts,” wrote Kennedy, “all in the context of recognizing that these disputes must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”
The dilemma of Phillips and the Masterpiece Cakeshop set Kennedy in a peculiar position.
Justice Kennedy, who ‘often casts the deciding vote in closely divided cases on major social issues,’ is a long-time proponent of gay and lesbian rights. He’s penned every major Supreme Court decision in pertinent cases since his ascension to the post in 1988.
And Kennedy—perhaps not surprisingly for a Republican and Reagan appointee—is also an ardent defender of the First Amendment’s clause on free speech.
Rather than topple one ideal in favor of the other, Kennedy chose what the Times describes as a ‘third path,’ piecing together an opinion applicable only to the case of Philips and Masterpiece Cakeshop. Writing on behalf of six other justices in the 7-to-2 decision, Kennedy opines that the Colorado Civil Rights Commission had been afflicted by ‘religious animus.’
One commissioner, recounts Kennedy, had made ‘inappropriate and dismissive’ comments about Phillips’ faith, leading the Court to toss its condemnations of the baker.
“The neutral and respectful consideration to which Phillips was entitled was compromised here,” wrote Kennedy. “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”
Phillips—who opened his bakery in 1993—said his choice not to bake a wedding cake for David Mullins and Charlie Craig wasn’t motivated by homophobia. Instead, claims Phillips, the same objection would have been presented to anyone wanting a product that violated the basic tenants of his strongly-held Christian faith.
“The Bible says, ‘In the beginning there was male and female,’” said Phillips, who, among other things, also refuses to bake Halloween cakes.
And Phillips maintains he wasn’t denying service to the couple, either—he purportedly offered to bake anything other than a wedding cake.
The Trump administration and its Justice Department sided with Phillips and the Supreme Court, falling back arguments of artistic agency and individual choice.
“A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian,” wrote Solicitor General Noel Francisco. “Accordingly, the government may not enact content-based laws commanding a speaker to engage in protected expression: An artist cannot be forced to paint, a musician cannot be forced to play, and a poet cannot be forced to write.”