Don’t be fooled by the Supreme Court’s 7-2 ruling. A menacing view of the First Amendment lurks in the details of the Masterpiece Cakeshop case.[The Federalist] The Supreme Court’s 7-2 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission was widely hailed by conservatives and religious liberty advocates on Monday as a win for religious liberty, even though the court dodged the larger First Amendment questions at the heart of the case.
VIDEO: Ben Shapiro on the Christian Baker Case win: ‘Capitalism is the single greatest force for tolerance in the history of humanity.’
The court ruled that Colorado unconstitutionally discriminated against Jack Phillips, the baker who refused to create a specialty cake celebrating a gay wedding, by showing open hostility to his religious beliefs. But the majority opinion, written by Justice Anthony Kennedy, is confined to the particular circumstances of this one case, as my colleagues Ilya Shapiro and David Harsanyi explain here and here.
It tells us little about how the Supreme Court views the core claim of Phillips, that Colorado violated his First Amendment rights to freedom of speech and free exercise of religion by compelling him to endorse same-sex marriage against his sincerely held religious beliefs. A footnote in Justice Elena Kagan’s separate concurring opinion, joined by Justice Stephen Breyer, points to the reasoning the court might have employed if it had engaged this larger question—and it doesn’t bode well for advocates of free speech and freedom of religion.
Kagan’s footnote is a reply to Justice Neil Gorsuch, who issued a concurring opinion joined by Justice Samuel Alito that noted the Colorado Civil Rights Commission applied a different standard in three others cases in which bakers had been asked to bake cakes with specific religious messages and had refused, citing secular beliefs (a customer had asked for a Bible-shaped cake decorated with a verse, “Homosexuality is a detestable sin – Leviticus 18:22”).
In those cases, the commission had upheld the bakers’ right to refuse their services. Gorsuch notes that the commission clearly applied a double standard, effectively engaging in discrimination against Phillips because of the substance of his belief.
This article continues at [The Federalist] A Footnote In The Supreme Court’s Masterpiece Ruling Bodes Ill For Religious Liberty