When the Supreme Court opened its October term last year, Masterpiece Cakeshop v. Colorado Civil Rights Commission—the “gay wedding cake” case—loomed as a blockbuster, a major step toward resolving conflicts between religious freedom and anti-discrimination laws protecting LGBT people in general and same-sex married couples in particular.
But someone left the cakeshop in the rain.
On Monday, the Supreme Court produced the melted remnant. By a contentious majority of 7–2, the Court held for the religious baker, Jack Phillips, who had refused to sell a cake to a same-sex couple, Charlie Craig and Dave Mullins, for a post-hoc celebration of their out-of-state wedding. It used a rationale applicable only to this case, which sheds no light on the larger civil-rights issues.
It was obvious at oral argument in December that the case had what Supreme Court insiders call “vehicle problems”—meaning that the facts and the record did not clearly tee up the issue the parties were seeking to resolve. (Some years ago, The New York Times’ Adam Liptak cogently explained the concept of a “clean vehicle.”)
On Monday, a majority opinion by Justice Anthony Kennedy listed the reasons why this case turned out to be a lemon. First, is what the couple asked for—a cake for a private celebration—really “speech” or “free exercise of religion” at all? Second, the record was unclear whether Phillips refused only to bake a cake with a “wedding” message or refused to provide any cake at all for Craig and Mullins’s celebration. Third, the events occurred before the Court’s decision, in Obergefell v. Hodges, that same-sex couples have a right to marry. Thus, Phillips in part based his denial on the fact that, at the time, Colorado did not permit same-sex marriage—that “the potential customers ‘were doing something illegal.’” Fourth, as Justice Kennedy pointed out at oral argument, the record was muddled by anti-religious statements made by state officials who considered the case below.