A legal analysis of the gay cake case


The Supreme Court decided 7-2 that cake maker Jack Phillips apparently did not have to make a cake for a homosexual wedding. I say apparently because the court's reasoning was convoluted. Instead of saying outright that custom cake makers don't have an obligation to produce custom made cakes for homosexual weddings, the court simply said that the local human rights commission didn't consider his rights to follow his religious belief when he refused to make a wedding cake for a homosexual couple.

By a 7-2 vote, the court said Jack Phillips, the Colorado baker, was treated with hostility and bias by a state commission that concluded his actions violated a state anti-discrimination law.

“The commission’s hostility [to Phillips and his religious beliefs] was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” [Justice] Kennedy wrote. “Phillips was entitled to a neutral decision-maker who would give full and fair consideration to his religious objection.”

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So the Court decided for Phillips without giving a broader ruling.

“The outcome of other cases like this in other circumstances must await further elaboration in the courts,” said Kennedy, who has authored most of the court’s most significant gay rights cases.

This may seem puzzling until you consider the composition of the court. In the seven member majority were four of the court's conservatives, Justice Clarence Thomas, Samuel A. Alito Jr, Neil M. Gorsuch, and Chief Justice John G. Roberts Jr. Also joining the decision were two hard-left justices, Justices Stephen G. Breyer and Elena Kagan; and the opinion was written by Justice Kennedy.

It's unlikely whether Justices Breyer and Kagan, who are doctrinaire leftists, would have agreed to a broader ruling. But even so they wouldn't have been needed if Justice Kennedy had been inclined to give a broader opinion.

Justice Kennedy created the "right" to gay marriage out of thin air several years ago, and now he is making up the law as he goes along. He has not yet decided how far this newly created right goes, and since he is unmoored by the framework of the Constitution, he is choosing, for now, to decide these disputes on a case by case basis. This is what happens when you abandon an established body of law and operate based on feelings. Not only do you throw out consistency but you make it hard to apply the law consistently because there is no consistent law to apply.

So there will continue to be huge clusters of litigation about people who are coerced into participating in gay marriage. Perhaps people who design wedding cakes will not be forced into participating, although that is not entirely clear from this opinion. Probably people who provide goods for weddings, such as flowers or tables or tablecloths, will be required to do so.

But what about business people who have to participate in weddings, such as caterers, photographers and musicians? The First Amendment has been held to protect freedom of association, but with freedom of association must also logically come freedom from association. It is one thing to sell the fish that are eaten at a gay wedding, but another to actually have to go to the gay wedding to fry it.

Homosexuals have been free to pursue relationships with each other for a long time. What has changed is that everyone else has been forced to accept it and now at times even participate in it. I saw an amazing opinion piece in the New York Times yesterday from a gay rights advocate who suggested amending the Constitution to protect gay rights. That would have been a much better course for the country, whether it succeeded or not, than what the Supreme Court did, informally amending the Constitution on its own and playing by ear with the whirlwind of lawsuits created by its irresponsibility.

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