The Supreme Court tries a bit to mop up a dog's breakfast. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Given that I criticized the Obergefell decision here in depth, some might find it surprising that I haven't gotten around to commenting quicker on this one.

I meant to and in fact I was prepared to really scoriate this opinion, based on early legal analysis of it.  But having read it, I'll concede that the Court did a much better job with it than I would have thought.

It's not as if they've solved the problem they created with Obergefell, but Anthony Kennedy's opinion and the concurring opinions go a lot further in that direction, and even in a legally cogent manner, than I would have guessed they would have.  Indeed, a characteristic of Kennedy's personality seems to come through in the decision in that he appears to be a bit miffed that people ignored his comments on how the earlier decision wouldn't result in a big social revolution, when in fact it is being used to do just that.  It's known that Kennedy gets upset with criticize of his decisions in the popular venue and it seems that he might also get upset by their misuse.

When Justice Kennedy cast his lot with those preforming a judicial coup in Obergefell it was my prediction that his happy prediction that it wouldn't really impact anything other than marriages between homosexuals was absolute and obvious nonsense. That came to be rapidly true, and it made it up to the Supreme Court pretty quickly in the form of cake. 

Indeed.

Well, perhaps another line regarding Kennedy's initial writing might be more appropriate.

Yet Clare's sharp questions must I shun,
Must separate Constance from the nun -
Oh! what a tangled web we weave
When first we practise to deceive!
A Palmer too!- no wonder why
I felt rebuked beneath his eye;
I might have known there was but one
Whose look could quell Lord Marmion.

Marmion, Canto 6.

Kennedy's original Obergefell decision was always a judicial mess as it was not grounded in the law and didn't develop it in a sustainable fashion.  The dissents pegged what really occurred.  A group of aged Ivory Tower jurists, attempting to get ahead of a social trend, did what they though hip and cool, thereby giving themselves the credit for what they thought to be an inevitable social trend anyhow.  If they were correct in their prognostication, what they really did was to guarantee decades of hostility towards the Supreme Court, which richly deserves it for engaging in a judicial end run, and decades of fighting as Americans do not accept such actions lightly.  If they were wrong, they will have created, in the process, misery over misery as people slug it out, outside of their legislatures.

But Kennedy, based upon the original opinion, seemed completely naive to that reality.  Now that the first wave has washed up on the shore of the Court, he seems downright irritated that people didn't agree with his view that this didn't impact deeply held religious beliefs and more realistic about what his earlier sloppy opinion meant.  So this one is much clearer and, contrary to what the press has indicated about it, it actually decides quite a bit.  It may be a limited holding, and indeed it is under its own terms, but it's not as limited as it might seem.

The decision is, I'd note, also exactly legally correct in its procedure, so the pundits that are amazed by that, are basically ignorant of the law.

Okay, let's start there.

Procedurally, the appellant here was found to be in violation of a Colorado law by a commission that's delegated to tell the residents of the Mile High Weedy State what they can and cannot think.  Okay, that's not really what the commission does, but the formation of commissions of this type always tend towards that result.  The reason for that was that appellant, Masterpiece Cake Shop, declined to bake a cake for a homosexual wedding party based on their moral convictions.  Interestingly, and often missed in this public discussion of this matter, Colorado did not recognize homosexual marriages at the time and the service was to be preformed in Massachusetts, not Colorado.  Colorado did protect, however, the right civil rights of homosexuals against discrimination, which most people most places are generally in favor of.

To anyone who really ponders it, no matter what their views may be, the fact that a bakery can get in trouble for such things is really problematic.  This isn't really the same as refusing to sit African Americans at a diner counter and almost everyone knows that.  Obergefell overturned millennia of human practice and is arguably not very much appreciated by a huge section of the public who views the decision as contrary to faith, morals and nature.  Moreover, the propaganda of the proponents of the decision leading up to it was that they would never use such a thing to argue for absolute social acceptance at all levels, which they now are.  This would nearly require a complete subversion of religious beliefs by all traditional religions and beliefs, which no other earlier civil rights act did.  And it also opens the door to any number of really odd results.  Can a Christian couple demand that a Jewish delicatessen that caters for weddings provide a pork roast on Saturday (the Jewish Sabbath) for a Christian wedding?   Can a Jewish family demand that a Muslim bakery bake a cake for a Bar Mitzvah?  Can a homosexual couple demand that a Russian Orthodox Priest perform a wedding for them in spite of the blistering clear objection to that in that (and other) faiths?  These are all questions that were promised to be absurd prior to Obergefell but which are all on the table now.

And this came directly into play in Masterpiece Cake Shop as the Colorado commission dismissed and even insulted the owners religious objections, which extended not only to wedding cakes but Halloween cakes and the like.

So the Court held that the appellants religious objections were not seriously and sufficiently considered and remanded the decision.  Yes, it's limited, but that was the right decision and its a pretty serious dope slap to the commission.  Now, what we'll see what the commission does but experience shows they usually whine and cry and send back a bad decision again, so we'll likely see this come back up.

But the direction seems clear.  In the decision the Court stated:

Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality.

So it sent it back for reconsideration, with directions that religious considerations be taken into account.

The Court is correct in all of that and it tried to make it plain, without giving too much direction in one way or another, that it wasn't trying to wad freedom of religion and conscience up in a ball and toss it out.  In the decision it noted:

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.

Of course the Court is treading a fine line between truth and fiction here in that while society came to that recognition, it didn't in the form in which the Supreme Court placed public in Obergefell.  That statement by Kennedy, however, is a pretty clear indication of what he thought he was doing, which wasn't really what he did.  He went immediately on to haul in part of the decision in the next paragraph as a preventative to what was, and likely is, going to be another challenge sooner or later:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

Yep, that's the problem already.

So we know that clergy cannot be compelled to perform homosexual marriages and we know that objections on conscience are valid.  We don't know what the limits to those objections are, and it would have been impossible for the Court to delineate them.  This means we're now going to have piles and piles of appellate decisions attempting to define that, and decades of fighting over it, unless Obergefell is overturned in a near term.  I know that's regarded as impossible, but we're not living in conventional political times.  For example, on the day I'm writing this a massive tariff is being imposed on China due to a campaign promise and that would have been regarded as a political impossibility in any other administration.

Anyhow, assuming that its not reversed soon, it's going to be argued and defined a lot.  Kennedy didn't seem to realize that in his earlier decision, but now does, and he's now reminding us that the promise of the Constitution is that religious views will be respected.   That was the promise too of the backers of homosexual unions, but they seem to have forgotten that. 

Kennedy, it might be noted, is rumored to be considering retirement.  Rumors to that affect are constant nearly every term, as he's quite elderly.  But this time I'd credit them a little more than usual.  Kennedy has been the "swing vote" due to his oatmeal mush like view of the law, which is no doubt not how he views it.  He's sensitive to his opinions being criticized and here he has a real problem.  It seems that he never intended Obergefell to be read the way it now is being read at the street level and he must surely be aware that out in the commissions and trial courts of the land its in for revolutionary application.  We've hardly even begun to see the commencement of the abuse of a decision that could only be used in that fashion.  Kennedy, due to his age, is at the point in life in which he's on death's door.  Whoever replaces him will swing the Court to the right or the left.  The right of the Court, in spite of criticism to the contrary is much  more likely to try to keep Kennedy's decision in place in the form in which he envisioned it.  The left won't, and instead will take it and run with it until there's a public reaction or societal reformation.  If Kennedy left now, ironically, his replacement is more likely to uphold his envision than if that replacement is put on the Court by a Democratic President.

O, what a tangled web we weave when first we practise to deceive!
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