Tuesday, June 05, 2018

Punting on 4th and 40 smart; not so on Masterpiece Cake Shop case

Religious conservatives are ecstatic over the Supreme Court's 7-2 decision yesterday supporting Masterpiece Bakery's refusal to bake a wedding cake for a gay couple. The issue was freedom to discriminate against gays on religious grounds against freedom from discrimination in public accommodations. But before rejoicing, religious conservatives believing, ala Seinfeld's "No soup for you!", that anti gay bakers, as well as other anti gay public businesses can turn away those dreaded gays, should actually read the decision. That's because the Supremes punted, refusing to lock in anti discrimination against gays in public accommodations which is most certainly the law of the land. They ruled in favor of Masterpiece not on an imagined First Amendment right to discriminate, but on the narrow, technical ground that Masterpiece itself subject to religious bias by the Colorado Civil Rights Commission (CCRC) in their decision requiring the cake be baked. The Court cited several words and phrases used by the CCRC to hang their bias charge. In fact, Justice Kennedy's decision re-affirmed that Masterpiece has no First Amendment right to discriminate based on religious freedom, making further expensive litigation inevitable.
Why did the Court punt? Alas, there was no post game press conference to question the 7 coaches who punted. Certainty, a primary directive of Supreme Court decisions, was sadly missing in Masterpiece. Punting when you're in the Red Zone of achieving full citizenship for gays in public accommodations is inexplicable... and bad public policy strategy.