The Cake Controversy That Just Won't Go Away & Anthony Kennedys last SC decison history....
A bit of history included with this article
Donation tins sit next to the cash register for Jack Phillips, owner of Masterpiece Cakeshop, Monday, June 4, 2018, in Lakewood,
The Cake Controversy That Just Won’t Go Away
The Cake Controversy That Just Won’t Go Away
By JOHN CULHANE
August 16, 2018
Difficult decisions can be deferred, but not ultimately avoided. So it is that Jack Phillips, the owner of the famous Masterpiece Cakeshop is back in federal court, again defending his refusal to create a cake to celebrate a milestone in the life of a sexual minority.
This time, it’s a birthday cake celebrating a gender transition he’s declining to bake, and it’s not clear how the courts will balance the parties’ competing interests. That’s because of the Supreme Court’s dithering on the issue earlier this summer.
Just two months ago, the Supreme Court confounded expectations on all sides with its side-stepping decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. It looked like the case had nicely teed up the question of how to accommodate two competing interests. On the one side stood a gay couple that wanted to buy a wedding cake from a business that had an obligation under Colorado state law not to discriminate against them on the basis of sexual orientation. On the other stood the owner of the cake shop, Jack Phillips, who claimed that requiring him to create a cake in celebration of a same-sex wedding would violate his constitutionally protected rights of religion and free expression. How would the court resolve these competing claims?
It didn’t. Writing for the court in one of his final opinions, Justice Anthony Kennedy, the author of all of the court’s major gay-rights-affirming decisions, kicked the can down the road by focusing on statements by one member of the civil rights commission that indicated hostility towards Phillips’ religious beliefs. Kennedy drew a connection to an earlier case in which the court had denounced hostility toward members of the Caribbean-based Santería religion, and found for Phillips. In what was a pattern in his final-term decisions, Kennedy wrote about the underlying tension between the religious liberty and non-discrimination imperatives, but then declined to decide how the conflict should be resolved.
The case didn’t even provide useful guidance for another case that was then before the court. A florist had refused to create an arrangement for the gay wedding of a couple she’d known for years, citing her religious belief. After sitting on the case for many months, the court finally decided not to hear it, vacated the judgment in favor of the couple, and directed the lower courts to resolve the matter in accordance with its Masterpiece Cakeshop decision. But that is no help at all, unless the case is also found to have involved anti-religious animus.
Now comes Masterpiece Cakeshop v. Elenis....................................
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