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Monday, June 4, 2018

Conservatives cry, "Let us eat cake!" but they will find the portions are very small indeed.

Image result for trump inaugural cake

This morning the Supreme Court issued its long-awaited ruling on whether a Colorado Christianist baker can legally refuse to make a wedding cake for a same-sex couple despite the state's anti-discrimination law's inclusion of sexual orientation as a protected class.

There are several things to know at the top. One is that the decision was 7-2, not an ideologically-driven 5-4.

Another is that Justice Kennedy- who has written all the major LGBT rights decisions of the Court- wrote this one. He did not give away the store.

The third thing is that the Court made a very narrow ruling. They found that the Colorado antidiscrimination commission didn't give the bakery owner's arguments a fair shake, so the Court overturned the commission's ruling that he violated the Colorado anti-discrimination law.

There is no big national rule in this case.

Justice Kennedy determined that religious freedom and its expression is important, but so is the right of LGBT Americans to walk into a store open to the public and not get dissed and denied service.

How to resolve that tension, the Court did not decide. The Court as an institution generally tries to limit its rulings to avoid unintended consequences, and it did so today.

By finding that the state of Colorado didn't give the baker's views a fair hearing, Justice Kennedy linked his decision to another care he decided in 1993, Romer vs. Colorado. In that case, voters passed a statewide referendum overturning all state and local LGBT anti-discrimination ordinances and laws and banned any new ones.

Kennedy's Romer decision held that a government entity cannot act against a defined group based purely on not liking who they are, or what they believe. Grounding the cake case in that reasoning, Kennedy preserved the body of law that has followed protecting and advancing LGBT equality.

I feared a more expansive ruling in which religious freedom claims could become a pretext for avoiding any law. Religious freedom advocates feared their First Amendment rights being subordinated by law to LGBT rights.

As neatly as a Gordian knot can be sliced, the case today did.

However- and there is always one of those- that will not end the debate. Since the baker won, evangelicals and gay-bashers will rejoice. They will also launch endless new cases trying to expand this toehold.

That is of a piece with their strategy against marriage equality, where they are adopting their anti-abortion playbook of reducing the Obergefell decision to a hollow shell by passing streams of laws chipping away at its substance.

In Republican-controlled states, look for a rush to amend state religious freedom laws with extreme extensions of the court's result, not its analysis. We see this, also, in the anti-abortion campaign: extreme laws are being passed precisely to create test cases to be rushed to the Supreme Court, because Gorsuch.

There are several concurrences to the Court's opinions today. Those get made when justices agree with the result but want to rearrange the furniture a bit. The conservative justices want to tilt the reasoning their way; the liberals, theirs.

The genius and the frustration of our legal system is that no question is settled forever. Everyone gets a chance to fight another day.

So Justice Gorsuch got a chance to publish another long, windy concurrence in which he manages to ape dear Justice Scalia's anger but not his intelligence or wit.

And Justice Thomas used his to work through some more of his unresolved racial issues ("Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross; conduct a rally on Martin Luther King Jr.’s birthday; or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to “‘Bury the niggers." (citations omitted)).

The thing to remember is that this is a 7-2 decision written by Justice Kennedy, not Alito or Roberts. The two dissenters agreed with the outcome but not the finding that the Colorado commission acted unfairly. They thought the commission did its job. The case is not what conservatives will try to make it, but they will try; and LGBT rights have not been crushed, and we will work to expand them. The fight goes on.

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