A case on the Supreme Court docket that was expected to result in an epic decision defining the extent to which anti-discrimination laws must yield to a defendant’s right to follow the tenets of his faith instead ended Monday with a resounding thud.
Writing for a 7-2 majority, Justice Anthony Kennedy found in favor of the Christian evangelical owner of Denver’s Masterpiece Cake Shop, Jack Phillips, in a case brought by a same-sex couple, Charlie Craig and Dave Mullins, who charged that Phillips turned down their request to commission a customized wedding cake for their upcoming nuptials. Phillips had argued that his Christian faith forbade him from doing anything in support of something it condemns as sinful.
Justice Kennedy, however, avoided addressing the underlying clash between the legal right to observe religious tenets and the legal right to equal access to public accommodations regardless of sexual orientation. Rather he focused on some blatantly negative remarks made by Colorado civil rights officials in an earlier phase of the case about religion.
Justice Kennedy said the case against Phillips was fatally tainted from the outset since Phillips was constitutionally entitled to a bias-free consideration of his legal defenses in all phases of the case brought against him. So he reversed the adverse findings made by the Colorado Civil Rights Division and the Colorado state courts against Phillips.
In other words, utilizing a familiar device in Supreme Court jurisprudence, Justice Kennedy decided the case on the easiest grounds available without having to reach conclusions on more momentous ones.
We suspect that Justice Kennedy did not go any further than he did because there weren’t enough Justices who would have decided the case in favor of either religious protection or sexual orientation protection claims. He was, however, able to cobble a majority on the pretty straightforward issue of apparent bias.
The bottom line is that there is very little of precedential value in Justice Kennedy’s decision, notwithstanding some extravagant statements made by some commentators and organizations. We really don’t know which way the next case presenting the underlying conflict will be decided if the issue of apparent bias is not part of the facts.
To be sure, Justice Kennedy tantalizes with some observations in his opinion suggesting a particular result in the future. But it is not really prudent to predict future Supreme Court outcomes based upon comments in an opinion that are not directly part of the holding of the Court.
We will have to wait for another day to learn what protections religious practice will enjoy in the face of the dizzying societal changes that are occurring all around us, all the time. Hopefully, such profound issues as those presented in the Masterpiece Cakeshop will be decided by a Supreme Court consisting of a clear majority of conservative-minded appointees.