The Masterpiece Cakeshop Decision Leaves Almost All the Big Questions Unresolved

Do bakers have a First Amendment right to refuse to bake cakes for same-sex weddings, even if there's a state law banning sexual orientation discrimination by such businesses?

Do they have a First Amendment right to refuse to bake such cakes that contain text or symbolism (e.g., rainbow striping) that the bakers disapprove of?

How about wedding photographers or videographers, who create products that (unlike most cakes) are traditionally seen as speech? How about calligraphers or graphic designers, who have an objection to personally writing or typing certain messages?

The Supreme Court's 7-to-2 Masterpiece Cakeshop decision answers none of these questions (not even the first, which seemed to be most squarely raised on the facts of this case). Rather, the decision concludes that, in this particular case, Colorado government agencies unconstitutionally discriminated against the plaintiff based in part on his religiosity; the Court concludes this based on particular statements made in the record, such as the statement by one member of the Colorado Civil Rights Commission that,

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

Applying antidiscrimination laws to a baker simply because he violated those laws, the Court said, might be constitutional (depending on whether that violates the Free Speech Clause, a matter on which the majority did not opine). Applying them because you find discrimination generally to be "despicable" would likewise not be impermissible religious discrimination. (Most laws are based on a judgment that the forbidden actions are wrong, and some based on a judgment that the actions are despicable; that does not make them impermissible discrimination against the religious, even if many of those who engage in those actions belong to a particular religion or set of religions.) But applying the laws because you find the defendant's religious views or statements to be "despicable" may be impermissible religious discrimination, and 7 Justices so found, based on this statement and several others.

This is a legitimate basis, to be sure, for deciding the case (though Justices Ginsburg and Sotomayor disagreed that such discrimination against the religious was showin this particular case). But it is a basis that will have little effect on other such same-sex wedding service provider cases, especially when government commissioners realize they shouldn't say more about religion than is necessary to deal with the particular religious objections raised in those cases. (In many such cases, there are religious exemption claims raised under state statutory or constitutional religious exemption regimes, such as state Religious Freedom Restoration Acts, and those require some discussion about whether the claimant's religious beliefs are sincerely held, and whether the claimant's beliefs forbid him from doing what the law requires.)

Four of the Justices did talk about the free speech issues here, and they split 2-to-2 (Justices Thomas and Alito would have accepted the free speech claim, and Justices Ginsburg and Sotomayor would have rejected it given the facts of this case, which in their view didn't involve any expression on the cake at all). I'll have more to say on that debate later, and I'll also discuss the religious discrimination arguments as well, especially the weight given to Colorado cases involving William Jack, who has now been proved to have produced a tactical masterstroke. But for now, the important point is that the free speech debate, as well as the broader religious accommodation debate, remains unresolved.

Finally, the careful reader might be asking: Does all this talk about government officials' statements showing religious bias foreshadow the result in the so-called (rightly or wrongly) "Trump Travel Ban" case, where the challengers are arguing that various statements by candidate Trump or President Trump show that the restrictions on travel from certain countries were motivated by religious hostility? Your guess is as good as mine.