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Anthony Kennedy Disappointed Everybody in Masterpiece Cakeshop. No Surprise, He’s Done It Before.

The mercurial justice lets everybody down, again.

U.S. Supreme CourtU.S. Supreme CourtOne of the most notable things about Justice Anthony Kennedy's majority opinion this week in Masterpiece Cakeshop v. Colorado Civil Rights Commission is the fact that it denied everybody what they wanted most.

Masterpiece Cakeshop owner and operator Jack Phillips wanted the Court to say that his right to religious liberty prevents the state from compelling him to create same-sex wedding cakes, since that would force him to violate his deeply held religious beliefs. The Colorado Civil Rights Commission wanted the Court to make clear that Phillips' argument for religious liberty cannot and indeed must not trump the state's anti-discrimination laws. If Phillips wants to sell wedding cakes, the state maintained, he must sell them to all comers regardless of race, religion, or sexual orientation.

Kennedy's opinion said none of those things. Here is what it did say:

The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of 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 that the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission decided this case, it did not do so with the religious neutrality that the Constitution requires.

Translation: Phillips won, but he did not come anywhere close to winning on the principal legal argument that he advanced. What is more, Phillips' principal legal argument might well lose in a future version of the case (or then again it might not) so long as the government's proceedings against him manage to avoid the taint of anti-religious bias. The real fight has been postponed until an unknown later date.

This result has left both sides feeling disappointed. But here's the thing about that: Disappointing everybody is a classic Kennedy move. Indeed, it's one of the hallmarks of his jurisprudence. Over the years, Kennedy has managed to dash the hopes and dreams of liberals, conservatives, and libertarians alike.

Consider his rulings on abortion.

In Planned Parenthood v. Casey (1992), Kennedy famously co-authored the plurality opinion that is widely credited with saving Roe v. Wade (1973) from being overturned. Casey both reaffirmed that abortion is a fundamental right and held that government regulations may not "impose an undue burden on the right."

Abortion rights advocates cheered that ruling and gave kudos to Kennedy. Yet in 2007 those same advocates were left reeling by Kennedy's majority opinion in Gonzales v. Carhart, which upheld the 2003 Partial-Birth Abortion Ban Act signed by President George W. Bush. They felt like Kennedy betrayed them.

Anti-abortion advocates were of course pleased by the result in Carhart, though they too felt the Kennedy sting. That's because Carhart reaffirmed the central holding of Casey. As Kennedy declared in his Carhart ruling, the government may not impose "an undue burden, which exists if a regulation's 'purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.'" Kennedy disheartened the anti-abortion forces even as he handed them a victory.

As for libertarians, Kennedy's tie-breaking fifth vote in favor of eminent domain in Kelo v. City of New London still rankles. "The most frustrating justice for us was Kennedy," Institute for Justice lawyer Scott Bullock told me. Bullock represented Susette Kelo and the other property owners in their fight against the government land grab. "I felt like I was just not making any progress with him during the [oral] argument, and he just did not seem to be really troubled by this."

Bullock expected Kennedy to be more receptive because Kennedy's previous jurisprudence had been generally hawkish in defense of property rights. In United States v. James Daniel Good Real Prop. (1993), for example, Kennedy had declared, "individual freedom finds tangible expression in property rights." But that version of Kennedy was totally AWOL from Kelo. As far as libertarians were concerned, Kennedy stabbed them in the back.

So Masterpiece Cakeshop is hardly the first time that Justice Kennedy has managed to disappoint everybody. The question is whether it will be the last time. Rumors of Kennedy's retirement are currently circulating around Washington. Should he step down later this month, Masterpiece Cakeshop would be one of his final opinions. As far as picking a swan song for his mercurial career on the bench goes, Kennedy could do worse.

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  • Zeb||

    Even sadder is that even if it had been decided in a way more favorable to religious freedom, the law would still be allowed to stand, with exceptions, and applied to everyone else. No one should be forced to associate or do business with anyone, period. I don't object to the religious liberty argument, I just think it is far too narrow.

    I was thinking the other day about the harm done on either side in a case like this. If you state it explicitly, it's pretty ridiculous. Which is worse, having to get your cake made by someone else, or having your business threatened, and if you don't cooperate, having your freedom and life threatened?

  • loveconstitution1789||

    Just goes to show how political the court is. Clearly Thomas and Gorsuch's desire to include freedom of speech and freedom of association protections in the decision were too originalist for Roberts, Alito, and Kennedy.

    This was the compromise that even brought two lefties into the decision.

  • Napoleon Bonaparte||

    No one should be forced to associate or do business with anyone, period.

    A good explanation as to why that will never happen.

  • ||

    One of the puzzles the libertarians have never un-puzzled is how a society can go from a non-libertarian state to a libertarian one, without a violent, miraculous blood bath.

    Actually, libertarians have un-puzzled it a couple of times over. Many transitions lead through violent bloodbaths, some can be attained by expatriation or abandonment or even by enlightenment. The issue libertarians have is that the enlightenment or expatriation options (and even really the bloodbath option) are nigh impossible to induce in any ideologically consistent way and, ideology or not, bloodbaths are easy.

  • Napoleon Bonaparte||

    You have the problem that over half of the population is currently receiving some form of government benefit. You have the further problem that a large number of those recipients are never going to be able live as well in a free market as they do in a welfare state, and they know it. Given that we live in a democracy they are never, ever going to vote against their interests. What "enlightenment" can you offer some gang-banger with no marketable skills, but the right to vote?

    Libertarianism is a great deal for the highly productive. Hooray. Now you have to explain to a populace which consists of more parasites than producers why they should vote for it (here's where the hookers and blow come in). Also, not particularly helpfully, libertarians eagerly support policies guaranteed to produce even more parasites.

    This is why even other fringe political movements are eating the libertarian's lunch. When libertarians are asked to justify their ideology, they have to resort to having some bow-tied economist outlining arcane economic ideas on a blackboard (and it doesn't help that as often as not those arcane ideas don't produce the same sterling results in reality that they did on the blackboard). All your competitors have to do is point at the headlines.

    You might want to remember, even the United States required a violent revolution supported by only 20% of the population to be brought into existence. So, yes. Short of bloodbath, you aren't going to get there from here.

  • MarkLastname||

    Cool story bro.

  • Michael S. Langston||

    Also, not particularly helpfully, libertarians eagerly support policies guaranteed to produce even more parasites.

    You keep using that word, libertarian. I don't think it means what you think it means...

  • Jerryskids||

    Yeah, I'm not at all a fan of the carve-outs for privileged classes. If I don't want to decorate a cake for a gay wedding, should it matter why? If there's supposed to be this separation of church and state, why is the state giving special treatment to the religious over the non-religious?

    My own particular complaint isn't with the gay wedding cake, it's with the Amish burial customs. I've often told the kids if they find me dead in bed, drag my corpse out into the woods and stick me in a hole and plant a tree atop me and keep your mouth shut about it. It's not a religious belief, just a philosophical belief, that my body is just the useless meatwrap around the me that is my soul (mind, spirit, consciousness, call it what you will) and as such is just a chunk of garbage once I'm no longer inhabiting it. Why not let it serve a useful purpose as fertilizer once I'm done with it?

  • Overt||

    Same here, except when I die, I want my internment instructions to include an instructional video called "Fargo Wood Chipper Scene". Mulch is much better for fertilizing.

  • Zeb||

    If there's supposed to be this separation of church and state, why is the state giving special treatment to the religious over the non-religious?

    That's the question, isn't it? I'm OK with the carveouts as a step in the right direction, but there is a worry that it means that certain religious believers will become a privileged class and it will never lead to a general freedom of association.

    I'm with you on disposal of mortal remains. The only reasonable regulation there is that you dispose of it in a sanitary manner. And if your family is burying it on their own property, it's no one's business at all. I don't care at all what happens to dead bodies as long as they aren't lying around stinking and spreading disease. All the rest is just rent-seeking by the funeral industry. I'm really not a fan of the funeral industry.

  • 100% Satisfaction Guaranteed||

    "If there's supposed to be this separation of church and state, why is the state giving special treatment to the religious over the non-religious?"

    The first amendment. This isn't hard people, it may not be correct from a full freedom standpoint, but the question you pose is fairly easy to answer.

  • Scarecrow Repair & Chippering||

    Apparently comprehension is hard for you. The context makes it clear it is a philosophical question, not one of constitutional law.

  • Zeb||

    But the first amendment protection of free exercise of religion isn't worth much if you have people who get to decide what is or is not a legitimate free exercise of religious practice. The only way to guarantee religious freedom is to guarantee the same general freedoms that are necessary for free exercise of religion to everyone.

  • Eidde||

    Just because they've screwed up the 9th Amendment and Privileges and Immunities so that the rights of honest secular businesses are rarely protected, it doesn't mean we need to go and screw up the First Amendment too.

    On the contrary, the more bad stuff the govt gets away with, the more constitutional rights it gets to violate, the longer and thornier the road back to sanity.

  • Michael S. Langston||

    I wanna find someone to bury me in secret too - with a bunch of weird items, so if my bones are ever discovered thousands of years later, they can have fun analyzing the grave details to tell a "story" about this human :)

  • CarLitGuy||

    Michael,
    you do know that anything the archeologists can't immediately identify as a useful tool will be classified as a "religious artifact", right? It won't be a "story" about you, it will be a faith they imagined from a loose lego,a few buckyballs, a random glass ornament and a USB cable.

  • Mickey Rat||

    "If there's supposed to be this separation of church and state, why is the state giving special treatment to the religious over the non-religious?"

    Separation of Church and State is not something explicitly stated in the Constitution. Freedom of Religion is explicitly stated.

  • Just Say'n||

    Interesting trivia, every federal civil rights act includes a religious exemption. It would appear that not even all protect classes are "equal".

  • Patrick Henry||

    Whenever I mention this to anyone invaiably the response is "So I suppose you believe anyone should be able to deny service to blacks?" as if it's patently obvious that certain groups should be able to deny my freedom of association. If you want to lose friends quickly reply in the affirmative.

  • ||

    "So I suppose you believe anyone should be able to deny service to blacks?"

    Why? Do you intend to refuse to work with blacks at your job?

  • Tony||

    Why is freedom of association, not something even mentioned in the US constitution, absolute? No right is absolute. Why should the freedom of business owners to discriminate trump the freedom of customers to be free from bigoted discrimination when they're shopping?

    All you can say is that you prefer it that way.

  • Rebel Scum||

    No right is absolute.

    Yes they are. That's the point. They just happen to be routinely violated by authoritarians/totalitarians like yourself.

  • ddfbdfb||

    Why should shoppers, who own nothing in the shop, get legal protection for forcing shop owners to cater to them?

    All you can say is that you're detestable and you'd be alone otherwise.

  • 100% Satisfaction Guaranteed||

    The right to peacefully assemble is in the Constitution. When you pass laws forcing people to associate with you, you've violated their right to peacefully assemble. When you call the cops and force the shop owners to interact with you, you've violated their right to peacefully assemble.

  • Tony||

    Nonsense. You walk down the street every day or go to work or go shopping and interact with people you might choose not to. You don't have a right to remove them from your sight. You're talking about a right that not only doesn't exist in the constitution, but which only exists in the real world in a rather limited way.

    I say again, the only reason to prefer owner rights to expel customers on a whim over customer rights to participate in the commerce of the society as freely as anyone else is because you prefer that regime. It's simply a different balance of freedom, meaning it takes some away from someone.

  • 100% Satisfaction Guaranteed||

    "Nonsense"

    Solid, legally valid retort.

    " Nonsense. You walk down the street every day or go to work or go shopping and interact with people you might choose not to. You don't have a right to remove them from your sight."

    I don't own the street. I'm also not forcing them away from me, or to interact with me. Your example is both a non-sequitur and meaningless.

    "You're talking about a right that not only doesn't exist in the constitution,"

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    "I say again, "

    Who cares. Repeating a debunked argument doesn't make it right. I'm sure it works on the people you force to associate with you, if only to shut you the fuck up, but it isn't a valid argument, it's just you moaning that for the first time in your pathetic fucking existence that you've had it explain to you why people have a legal right to avoid you and you have no intelligent reply.

  • DWC||

    Not to mention that we do not derive our rights from the constitution.

  • MarkLastname||

    Way to bury the actual point. What your disputing has nothing to do with the 'commerce of society.' It's the right to bar someone from entering your property. That's it. If you have a party at your house, should you be allowed to tell someone at the door that they aren't allowed in, regardless of the reason? Or should you be allowed to only invite people of a particular race?

    If so, there's no reason you shouldn't be allowed to do the same if you're selling something. You don't get to remove someone from your sight; you do get to remove them from your property.

  • MarkLastname||

    To be 'free from discrimimation' Is another way of saying they have a right to force the proprietor to do business with them.

    Ask yourself, what's so special about shopping? Why shouldn't people be free from discrimination everywhere? Why not punish people for not having black friends, or refusing to have sex with Jews?

    People have the right to discriminate in who they associate with. To assert a right not to be discriminated against is to assert an obligation to associate with someone. That's the problem with 'positive freedoms.' They coerce someone else into doing something against their will.

  • loveconstitution1789||

    Protected,rights should not be determined by the government which is the whole point. Otherwise government just makes exceptions and guts the protected right.

    It's not freedom of religion because....

    It's not a protected right of the people to keep and bear Arms because....

    The unreasonable search did not require a warrant because .....

  • Mickey Rat||

    If it is an explicitly protected right, exceptions will be found that are large enough to abrogate the right entirely. See "generally applicable law".

    If it not explicitly protected right, it will be ignored at the convenience of the authorities. See the UK and free speech rights.

  • loveconstitution1789||

    Kennedy loved/loves being the swing vote. He also does not want to upset anyone by being sticking to the Constitution in a "mean" way like Thomas does.

    I just hope he retires after this term, so Trump can get another originalist onto the SCOTUS. Kennedy would be a real shitbird if he waits to retire for stupid reasons like RBG did. RBG really messed up not letting Obama pick her successor when the lefties controlled the Senate.

  • Idle Hands||

    I honestly have no idea why RBG didn't retire, but it might have been all the articles online and in the press that were openly pining for either her death or retirement during Obama's term. That would have been enough for me to stick it out, fuck 'em.

  • loveconstitution1789||

    Yea, who knows for sure. I suspect its a power thing too. "Look, I am the most powerful judge in the USA".

    Some of these judges are 80 years old and should not be driving let alone deciding constitutional issues based on a Constitution they gave up on 50 years ago.

  • Eidde||

    Who, other than a truly humble or truly disabled person, would want to give up all that POWER?

    Yes, with great power comes great responsibility, but also with great power comes the ability to give orders affecting millions of people and have them obey.

    You can't get the same charge out of choosing among the items on the Early Bird Special.

  • Cy||

    It rubs the lotion on it's skin...

  • Rich||

    Still, the delicate question of when the free exercise of 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 that the State sought to reach.

    *** reads this utterance three times ***

    This is why Kennedy pulls down the big bucks.

  • Mickey Rat||

    The dubious presumption is that there was a valid exercise of state power in compelling compliance with a customer's bespoke decoration. Which not even the commission believed. Given other rulings by the commission it is clear it was favoring a particular ideological/theological viewpoint, not that a business must serve every customer.

  • brec||

    Where is there an indication that the couple requested a "bespoke decoration," and, if known, what was the requested decoration?

  • 100% Satisfaction Guaranteed||

    Read the decision, this is all in there.

  • Rebel Scum||

    principal legal argument

    This should have been freedom of association and property rights. Which is to say I own my labor and the product thereof, therefor I can contract it at my leisure.

  • Scarecrow Repair & Chippering||

    Self-ownership is far too powerful and simple for the elites to tolerate.

  • loveconstitution1789||

    It takes a village....

  • lap83||

    Whenever I see "Masterpiece Cakeshop" I keep thinking it's a new stuffy historical drama on PBS.

  • Eidde||

    The story of a baker in Euling-upon-Wimbledon whose sons died in World War One, so he throws his passion into his confections.

    Then he meets the daughter of the local vicar and zzzzzzzzzzzzzzz oh wait did I just fall asleep? Anyway, there's people having long conversations and driving around in 1920s cars, it's great!

  • Diane Reynolds (Paul.)||

    The court has spoken.

  • Rich||

  • Just Say'n||

    The interesting thing about this ruling is how it was clear from before the trail at the Supreme Court that the ACLU and the Colorado commission employed religious bigotry in furthering their prosecution. The facts of the case were publicly known well before this ruling.

    And yet, woketarians saw no problem with this. But, they did see a problem with Trump's Muslim ban, which was also clearly based upon religious bigotry. Which seems like, once again, woketarians are employing "principals" before "principles".

  • Rich||

    Trump's Muslim ban, which was also clearly based upon religious bigotry.

    HATE CRIME!

  • Juice||

    in his capacity as the owner of a business serving the public

    "I don't serve the public! I serve customers of my choosing."

  • brec||

    create same-sex wedding cakes

    Does anyone have a link to something showing exactly what the baker refused to sell? What was "same-sex" about the cake that the couple requested?

  • ||

    Does anyone have a link to something showing exactly what the baker refused to sell? What was "same-sex" about the cake that the couple requested?

    The requestors, that's the point. He offered to serve them all the non same-sex items the shop had to offer. They requested a custom same-sex product. He refused the request.

  • brec||

    I read (part of) the SCOTUS opinion.

    One of the difficulties in this case is that the parties
    disagree as to the extent of the baker's refusal to provide service. If a baker refused to design a special cake with
    words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might
    be different from a refusal to sell any cake at all. In defining whether a baker's creation can be protected, these
    details might make a difference.

    And:

    Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for "our wedding." Id., at 152 (emphasis deleted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not "create" wedding cakes for same-sex weddings. Ibid. He explained, "I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings."

    So it seems, albeit with some uncertainty, that it was a non-specific cake intended to be served at a same-sex wedding, rather than a "same-sex cake."

  • Zeb||

    Though if he is some kind of highly regarded cake artist, he might consider every cake a special creative endeavor.

    If I were him, I'd just take the money and do it. It's not as if it's going to stop gay marriage from being a thing. But he should be able to refuse for any reason. It's just petty bullshit. There are plenty of bakers willing to make them wedding cakes. The public accommodation thing might have made some sense when it really was the case in some places that blacks couldn't get a hotel room or other important accommodations. But the situation for gays in 2018 is absolutely nothing like that of blacks in the 1950s.

  • ||

    But the situation for gays in 2018 is absolutely nothing like that of blacks in the 1950s.

    Now I wanna find a black baker and make him bake me a white privilege cake.

  • Tony||

    Who has words on their wedding cake??? Not any gays I know. Not even the tackiest of straight people.

  • loveconstitution1789||

    "Fuck you Tony" is what I put on all my cakes.

    Its funny when people ask who Tony is.

  • Rev. Arthur L. Kirkland||

    Justice Kennedy appears to have indicated that the bigots will not win in America but that society should be nice to the bigots as they lose.

    I am content.

  • Tony||

    That's a good read. It was a bizarre decision that seemed most interested in not igniting any battle in the culture war.

    A SC that knows it is a major player in making policy is preferable to one that pretends that its decisions are ordained by God.

  • Just Say'n||

    I'm glad you soy boy tyrants have found eachother

  • ||

    It was a bizarre decision that seemed most interested in not igniting any battle in the culture war.

    Bizarre if only for the fact that several of it's own members, some current, bemoaned it's wading in to the culture war in the first place 5-10 yrs. and even longer ago.

    Kinda makes it seem less like refusing to ignite a battle and distinctly like not cleaning up a mess you made.

  • MarkLastname||

    In other words, principles and intellectual consistency are lame!

  • Entropy Drehmaschine Void||

    "The mercurial justice lets everybody down, again."

    Looking for a spot on the Cleveland Browns when he retires, I presume?

  • LifeStrategies||

    Yet there's an equitable but widely ignored solution to the cake-baking /dress-designing /flower-arranging issue and that's to uphold BOTH the 1st Amendment AND public accommodation laws with a pragmatic approach.

    The issue is simple when you stop ignoring the crucial distinction between the 1st Amendment rights of a person and a business. The 1st Amendment specifies that PEOPLE have the right to both free speech and not to speak, but does not specify businesses.

    So these laws can compel a business to comply but this does not mean an individual working or employed in that business should be forced to surrender his/her 1st Amendment rights.

    If someone in that business is willing, then the customer gets his cake/dress/photograph. But if no one there is willing, then 1st Amendment rights should trump public accommodation laws and the would-be customer goes elsewhere. This largely resolves the tension. In a freedom-supporting world, of course, there would be no such laws, but should the perfect be the enemy of the good?

    It seems to be domineering bigots like the gay couple objecting to Philips' refusal to celebrate their union that cause such difficulties. Such snowflakes should stop trying to arrogantly insist the 1st Amendment doesn't apply to people who disagree with them and simply get their cake baked elsewhere.

  • Mock-star||

    "The 1st Amendment specifies that PEOPLE have the right to both free speech and not to speak, but does not specify businesses."

    It does no such thing. It states that "Congress shall make no law.... abridging the freedom of speech". The only time it specifies "people" is the right to peaceably assemble and petition.

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