After the Cakeshop case: Justice Kennedy cites need for First Amendment guidelines -- then punts

It's the question that journalists have to be asking right now, along with the legal pros on both sides of future First Amendment clashes between sexual liberty and religious liberty. 

Now what?

To be blunt, was the 7-2 U.S. Supreme Court ruling in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (.pdf) a signal (a) to religious believers of all stripes that it's open season, in terms of rejecting LGBTQ customers or (b) to blue-zip-code politicians that they are free to stomp on the First Amendment rights of traditional religious believers, only while using cool, calm legal logic rather than the heated prose used in Colorado?

As always, the key lines to parse were written by Justice Anthony Kennedy. Here is the essential material, as quoted by USA Today:

Kennedy acknowledged that business owners generally cannot deny equal access to goods and services under a neutral public accommodations law. Otherwise, he said, "a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws."
"The outcome of cases like this in other circumstances must await further elaboration in the courts," Kennedy said. "These disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

It's interesting that Baptist Press, when focusing on the same bottom line, made a strong effort to note the degree to which Kennedy once again affirmed LGBTQ rights:

"Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," Kennedy said. "For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression."
He wrote, "The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

So reporters, what phrases jump out at you, as you look to the future of this story? Look at the Baptist Press quotes again.

For me, the hot-button phrases are, on the LGBTQ side, "can, and in some cases must protect them," and on the side of traditional religious believers, "are protected views and in some instances protected forms of expression." Note that religious beliefs (private) are protected, but not always their (public) expressions.

Then there is the usual "the outcomes ... must await further elaboration in the courts."

So a nod in one direction and then the other. What kind of guidelines will shape the decisions in these future cases? Click here for the SCOTUS answer, at this moment in time.

It's clear that the court remains divided on the First Amendment questions. Thus, Kennedy punted -- facing a head-on collision between his history of defending the First Amendment and his legacy-shaping advocacy of LGBTQ rights. And what about those renewed reports that he is poised to retire?

Back to the news coverage: So what did the court (and thus many journalists) avoid saying? In his Twitter-storm overview of yesterday's breaking news, our own Bobby Ross, Jr., stressed points made often in GetReligion discussions of these stories, when facing "distinctions between broad discrimination against a class of people and very, very narrow acts of conscience linked to longstanding religious doctrines and religious rites."

Note the word "narrow," which -- with due cause -- was at the center of the news coverage of this Masterpiece Cakeshop decision.

Now, did anyone really expect the court to offer explicit commentary on, oh, the guidelines in the Religious Freedom Restoration Act? Not really. 

However, if SCOTUS says that religious liberty (or sexual liberty) will win in some future cases and not others, then that implies that someone will have to articulate RFRA-type standards that draw some guidelines for judges and legislators. Oh, and ordinary Americans who are in creative arts linked to weddings.

So we know that seven SCOTUS votes say that it's bad that Colorado politicos freely expressed their animus toward baker Jack Phillips and his conservative Christian faith.

However, was it important that his beliefs were rooted in centuries of Christian doctrine as opposed to mere personal feelings?

We don't know.

Was it important that he offered to sell the gay couple any of the generic wedding goods in his store? That he offered to create cakes for other events for them? 

We don't know.

Of course, what this baker declined to do was create one of his special, hand-crafted, unique designer cakes celebrating the same-sex wedding. Was it important that Phillips has, in the past, declined to make artistic statements linked to other (for him) religious issues, such as Halloween, bachelor parties, events celebrating divorce, cakes with atheistic messages or cakes containing alcohol?

We don't know.

Clearly, when it comes to old First Amendment liberalism on matters of religious liberty, the Supreme Court remains divided. Thus, the perfectly accurate, but incomplete, New York Times overture:

WASHINGTON -- The Supreme Court on Monday ruled in favor of a Colorado baker who had refused to create a wedding cake for a gay couple. The court’s decision was narrow, and it left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.

Again, it's crucial to note that Phillips and his legal team were not seeking the right to discriminate against LGBTQ people as a class, to refuse to do business with them. Phillips was striving to avoid creative, personal involvement in a specific religious event that violated his religious beliefs.

That's the First Amendment red line at the heart of these debates, the line SCOTUS avoided discussing. Also, this is the line that many journalists either fail to see or that they are having trouble finding a way to include in their coverage. Then again, some journalists may reject that this distinction exists or that it matters. In other words, they themselves reject the old liberalism of the RFRA guidelines, so they do not mention it.

To its credit, the Times editorial-page team did print an op-ed commentary by Robert P. George of Princeton University in which he stressed that:

... much remains unresolved. Did the constitutional problem with the commission’s actions derive solely from its members’ motives? Would the fining of Mr. Phillips have been acceptable based purely on a judgment that his refusal to cater same-sex celebrations constituted discrimination based on sexual orientation, and not on the basis of antipathy to Mr. Phillips’s beliefs?
In a concurring opinion, Justice Kagan, joined by Justice Breyer, seems to suppose so. If she’s right, the message to state officials could be taken to be: “Look, guys, of course, you can punish the Christian baker. But just remember not to state your own moral or religious reasons or reveal your antipathy to the target business owner’s moral or religious reasons on the record.”
Justice Neil Gorsuch, in a concurrence joined by Justice Samuel Alito, challenged the Kagan reading ... noting that the commission had demonstrated its unconstitutional lack of neutrality not merely by the improvident words of some of its members, but even more decisively by ruling in other cases in favor of bakers who refused to bake cakes for religious people who requested them as statements of opposition to homosexual conduct or same-sex partnerships. If Mr. Phillips was guilty of discrimination based on sexual orientation then surely these bakers were no less guilty of discrimination based on religion -- another type of discrimination expressly forbidden by the Colorado law.

So what is next: Flowers

The U.S. Supreme Court must still decide whether it will take up the case of a Washington state florist who refused to sell flowers for a same-sex wedding. The case has similarities to a Colorado baker’s case decided by the high court Monday, in a 7-2 decision. ...
The Supreme Court is expected to decide this month whether or not it will accept the case, or send it back to the Washington State Supreme Court for another review.

Will Kennedy be around to punt, once again, on the essential First Amendment questions? Will he trust Donald Trump to select another kicker?

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