https://www.nationalreview.com/2018/06/masterpiece-cakeshop-setback-liberty/
This was a straightforward free-expression case, and the Court could have resolved the dispute in favor of liberty.
I must respectfully disagree with the editors regarding the Supreme Court’s ruling in Masterpiece Cakeshop.
Professor Steve Vladek is right: The decision is “remarkably narrow.” One cannot help but be struck by the majority’s reticence from the outset: “Whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause.” Mind you, this is from the pen of Anthony Kennedy, a judicial supremacist who ordinarily interrupts his liberty bender only to scold the People — formerly known as the sovereign — to pipe down and quit grousing once the Robed Nine have spoken.
On this one, though, Justice Kennedy assures the Left it can grouse away. This ruling, in grudging accommodation of religious conviction, will not necessarily bear on the outcome “of some future controversy involving facts similar to these.”
To be sure, I am all for a Lincolnian construction that reduces Supreme Court rulings to a duly narrow resolution of the dispute between the litigating parties, leaving it to the republic to govern itself accountably. But that is not what’s going on here. This case is a one-off. The justices, manifestly pained, side ever so ambiguously with religious liberty, a founding principle of the nation, over gay marriage, a trendy progressive cause that would not remotely have been threatened in Colorado had Jack Phillips been left in peace to honor his convictions.
Kennedy’s sweet-mystery-of-life jurisprudence is all about exploring the exotic contours of liberty to discover heretofore unknown substantive safeguards. Not in this case, though. Confronted by a liberty twofer — an attack on free-expression rights that also burdens religious liberty — the justices punt on substantive protections for traditional religious exercise and speech (the latter liberty that could and should have decided the case in Mr. Phillips’s favor); they agitate, instead, over procedural flaws in the state’s adjudication of the conscience question.