Let Them Eat Wedding Cake: The Supreme Court Rules in Favor of Colorado Baker (But Only Him)



By Kevin Cain, J.D. - Posted at Apologetics Press:

Justice Kennedy (who authored the 5-4 Obergefell opinion recognizing constitutional protections for gay marriage) strikes again authoring the majority opinion on the long-awaited Colorado baker and gay wedding cake case.1 While many were looking forward to the Supreme Court addressing the issue of conflicting interests (gay rights versus free exercise of religion), the Supreme Court side-stepped this issue and resolved this particular case in such a way that it will have little impact on other cases in the future. Justice Kennedy was joined by six other justices with two justices dissenting, making the opinion a 7-2 split.

This case involved a Colorado baker who refused on religious grounds to bake a cake for a gay wedding. The gay couple filed a charge against the baker alleging discrimination on the basis of sexual orientation under the Colorado Anti-Discrimination Act. The Commission found that the baker discriminated based on sexual orientation. Justice Kennedy recognized that this case raised a difficult issue regarding the balance of the protection of “the rights and dignity of gay persons” versus “the right of all persons to exercise fundamental freedoms under the First Amendment.” Unfortunately, the Court did not resolve this dilemma. Yes, the ruling was a big win for a Colorado baker, but not a big win for the conservative right or liberal left as some had hoped.

The Court held that the Commission’s treatment of the baker violated the State’s duty to refrain from enforcing laws with hostility toward religion. The Court focused on hostile statements made toward the baker during the State Commission’s formal hearing to determine if the baker had discriminated against the gay couple in violation of Colorado law. The commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere. Another commissioner suggested that the baker can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in this state.” This hostility was contrasted with the Commission’s inconsistent treatment allowing other bakers in Colorado to refuse service to patrons who wanted wedding cakes with an anti-gay message. As such, the Court held “the Commission’s treatment of [the baker’s] case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”

The unfortunate result of this ruling is that the Court found unconstitutional conduct in the manner in which the Commission implemented the law as opposed to the law itself. Rather than decide whether First Amendment rights must give way to the right to not be discriminated against based on sexual orientation, the Supreme Court focused on the manner in which the Commission implemented this law. While this focus is disappointing, it is not surprising from a legal standpoint. Courts of appeal throughout this nation will frequently resolve an issue using the path of least resistance principle. For example if there is a threshold procedural issue (Did the party timely file their appeal?) and a substantive issue (Was their evidence to support the verdict of murder?), most courts will resolve the entire appeal on the threshold procedural issue without addressing the substantive issue. It is the simplest and cleanest way to resolve this appeal, and it would not be out of the ordinary for the U.S. Supreme Court to resolve this gay wedding cake appeal the way it did. Disappointing—yes; unusual—no.

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