I just finished reading the decisions in the case of Masterpiece Cakeshop vs. Colorado Civil Rights Commission. Obviously, I was disappointed by the decision and by the fact that both Justices Kagan and Breyer signed onto the decision (although Kagan did write a concurrence). I was somewhat relieved that Justice Kennedy wrote it, if only because I knew that by having him write it, the damage to the queer community would be limited. If the decision had been written by Justices Thomas, Gorusch, or Alito, the damage would have been much worse, as is evidenced by the concurrences of Justices Thomas and Gorusch. Had Chief Justice Roberts written it, the decision would probably have been worse, but maybe not as bad as Thomas or Gorusch would have done.
Basically, Kennedy's decision was that the Civil Right Commission was mean to the Philips (the owners of Masterpiece Cakeshop) because they noted that if you own a business you must follow generally applicable non-discrimination laws regardless of your religious belief per Employment Division v. Smith (1990) and because they said that religion has been used to justify all sorts of evil acts (including slavery) and that this use of religion is despicable. Both statements are undoubtedly and objectively true. The last portion about that use of religion being "despicable" is most definitely value based, but hardly displays any sort of hostility towards religion. The hostility (if there is any) is directed against the particular way religion has been used. If you read the opinion, it really feels like Kennedy was looking for a reason to overturn the decision without allowing for unfettered discrimination, so he came up with an incredibly flimsy pretext. He also argues that because no one on the commission objected to the statements and the Colorado Court of Appeals didn't do anything about them, it was obvious that there was impermissible religious viewpoint discrimination. He also said that the fact that a man who wanted 3 cakes from 3 different bakeries, all with words written on them that was homophobic (as opposed to a generic wedding cake that the Philips were asked for) was not able to get them was somehow analogous to the situation at hand. So, somehow getting cakes inscribed with discriminatory speech is equivalent to getting a generic wedding cake. Sure. That makes perfect sense. (Please note that the sarcasm is like Niagara Falls at this point.)
What gets me here is that the initial decision, which both the Civil Rights Commission and the Court of Appeals upheld, was determined by an Administrative Law Judge (ALJ) and no one has said that the ALJ screwed up in how they handled things. There is nothing in the opinion that indicates that the ALJ had any sort of "impermissible religious discrimination", yet their decision was confirmed (not decided) by the Civil Rights Commission and the Court of Appeals. So even assuming that there was religious bias (which I do not by any means), the underlying decision was untainted by any such bias and thus (presumably) should have held up. Unless, of course, the person reading it is looking for discriminiation, in which case they will find it no matter what.
Gorusch and Thomas both issued predictably regressive opinions that mirror the nonsense laid out by the homophobic groups sponsoring this lawsuit, so we'll just ignore them because they don't do legal analysis, rather they do political punditry.
Kagan wrote a concurrence, which Breyer joined, and agreed that there was bias against the Philips. However, she made it clear that she did not agree that the other cakes (the 3 from the different bakeries) were similar to the case at hand, even if Kennedy thought that they were.
Ginsberg, who was joined by Sotomayor, looked at the case and said that the statements at hand did not rise to the level needed to reverse the case. She argued that what Philips discriminated against the gay couple because they were gay whereas the other man was turned away from the three shops because what he wanted to be made would not be made by the shops no matter who was asking for them. Thus, the couple was discriminated against illegally, but the man was not (Kagan wrote the same thing), which makes their cases very different and thus not usable for comparative purposes. Ginsberg also argued that there were so many layers of people making the same decision that a couple of statements, even if they expressed bias (which, as I said, is debatable at best, a fiction at worst), should not have invalidated the entire decision.
So basically, the ruling was narrowly for Cakeshop on procedural grounds and the Court punted the decision on the merits down the road.
