I just saw an interesting little nugget in the discussion of this case over on Volokh Conspiracy; to wit: does the emphasis on the prejudiced remarks by the Colorado commissioners foreshadow a possible result in the case regarding Trump’s travel ban? That is, if the subjective, but voiced, prejudices of the commissioners in this case were enough to render their decision unconstitutional discrimination, does that imply that the Supreme Court will also find that Trump’s prejudiced anti-Muslim statements render his travel ban unconstitutional discrimination?
If that’s true, then this case was an incredibly expensive horse-trade.
That's funny,
@Oceander , I was reading the case on the train this afternoon and beside one passage in the majority opinion I scribbled the word "Trump!" That passage is as follows:
Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account, in determining whether a law intentionally discriminates on the basis of religion. [citation omitted] In this case, however, the remarks were made in a very different context - by an adjudicatory body [the Colorado Commission] deciding a particular case.
That sure sounds like a signal regarding the Court's upcoming ruling on the Trump travel ban. But here, of course, the requirement of neutrality is essential to due process and impartial justice. The Colorado Commission's record including the statement of one of its members that religious belief has been used to justify slavery and even the Holocaust was simply outrageous, and effectively tipped the scales of justice against Mr. Phillips.
But is the case a nothingburger, as I suggested above? I don't think so, although the language that will affect future cases will be mostly found in the concurring and dissenting opinions. I'd recommend that anyone who favors the baker read Justice Kagan's opinion, and that anyone who favors the plaintiffs read Justice Gorsuch's concurrence, as well as Justice Thomas's opinion, who unlike the other Justices, takes seriously Mr. Phillip's claims regarding his free speech rights (as opposed to his right to freely exercise his religion.) These are the competing arguments on the merits on which the Court punted, and for which resolution awaits another day. Like Oceander said, it was not possible to get five Justices to agree on anything other than Kennedy's absolutely correct conclusion that Phillips' claims were not treated fairly by the adjudicator.
But is the majority opinion valueless with respect to the Constitutional issues? I don't think so. Although addressed far more directly and substantively by the concurring and dissenting opinions, the majority touched on the issue of disparate treatment in how the Commission upheld the conscience objections of three other bakers who refused to bake cakes with "offensive" anti-gay messages, while consigning Mr. Phillip's conscience objections to the dustbin.
Before the Colorado Court of Appeals, Philips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers' conscience-based objections as legitimate, but treated his as illegitimate - thus sitting in judgement of his religious beliefs themselves.
. . . A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as 'no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion', it is not, as the Court has repeatedly held, the role of the State to prescribe what shall be offensive. The Colorado court's attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips' religious beliefs.
This, I think, is the victory Mr. Phillips gained. He may not know whether he can, in the future, refuse to bake wedding cakes for gay weddings, but if he refuses again it seems clear that his conscience-based objection - grounded in religion - must be treated as seriously and presumptively genuine as a conscience-based objection based on secular belief. It is Mr. Phillips who is the arbiter of what is offensive to his religious sensibilities, not the State. The government cannot favor or disfavor religion, and cannot place its thumb on the scale of justice by dismissing expression or conduct rooted in religious faith as inherently quaint or backward or destructive.