Justice Kennedy obviously did not want to decide the issues presented in the wedding cake case, so he took a specious way out. He argued that the Civil Rights Commission (one of 4 Colorado decisionmakers in the case) had an anti-religious purpose. To support this conclusion, he pointed to an anti-religious statement by one commissioner (of the seven on the Commission) and a number of other statements that even he conceded could be read (and, in my view, clearly should be read) to say that religious businesses had no right to discriminate against their customers. That the statement of the single Commissioner could have been a but for cause of the outcome in Colorado strains credulity to the breaking point.
In addition, Justice Kennedy points to an inconsistency on the free speech issue by the Commission. Colorado had ruled that cakemakers could not be compelled to sell a cake with an anti-gay message on it. Yet on the free speech issue, the Commission in part stated that any message communicated by the cake would be attributable to the couple ordering the cake, not the baker. This is inconsistent, but it is quite a leap (a leap over a chasm of evidence) to attribute difference in reasoning to anti-religious bias. In any event, the facts in the wedding cake case did not involve the baker (Phillips) putting any message on the cake. He refused to provide a cake for the ceremony before there had been any discussion of the kind of cake. Moreover, in the cases involving anti-gay messages, the bakers were not discriminating on any basis covered by the Colorado Anti-Discrimination law, while Phillips was discriminating on the basis of sexual orientation. Once again if there was an anti-religious purpose on the Commission’s part, it did not affect the outcome and it is unlikely the Commission as a whole had an anti-religious purpose.
The result of the case is so narrow as to be paper thin. If a gay couple orders a wedding cake from Phillips, the holding in the wedding cake case will be of no assistance to him unless he is willing to gamble that someone on the Colorado Civil Rights Commission will somehow display bias that a key justice will seize upon to avoid reaching the issues yet again.
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