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Archive for June, 2018

A few preliminary thoughts on the decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (announced by SCOTUS this morning):

First, I’m quite surprised that the final vote was 7-2. Justices Breyer and Kagan did question Colorado’s counsel closely at oral argument, and Justice Kagan’s questions throughout showed particular attention to the case’s facts, but I didn’t see either casting a vote for Masterpiece Cakeshop. Certainly not both.

Second, no one should be too cast down or too elated by the decision. The key passage from the Court’s opinion shows that this wasn’t a touchdown, or even a first-down conversion, for the religious traditionalists, but more of a punt that took a nice bounce and left their defense in somewhat better field position for the next series than expected. Here is the key passage:

. . . the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

Slip op. at 3.

So . . . what? Had some of the Commissioners in Colorado spoken more respectfully of Jack Phillips’s faith, would the case come out the other way? Is the consequence of the decision going to be that counsel for State Commissions are going to tell their clients to be extra careful to say “we really respect your religion, but the law compels us to order you to design and craft the wedding cake, and to participate in remedial education about why you must make the cake”?

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