The Nine Wise Souls in Washington are in the homestretch, which means every Monday for the next few weeks will echo with the sound of shoes dropping all over the Constitution. On this particular Monday, they handed down a funky 7-2 unsigned decision in the case of Masterpiece Cake Shop et. al. v. Colorado Civil Rights Commission et. al. The case involved a bakery, the owner of which refused to make a wedding cake for a same-sex couple because, he said, his religious principles forbade it. While a 7-2 decision is not a “narrow” one, as was reported, the legal grounds on which the Court found for the baker are.

Instead of a sweeping declaration one way or the other, the majority—which included both Justices Stephen Breyer and Elena Kagan—determined that the members of the Colorado Civil Rights Commission were excessively hostile to the religious beliefs of Jack Phillips, the baker in question, and that the hostility they expressed was the basis for the Court’s ruling.

(Apparently, during the commission’s deliberation, there was some loose talk comparing what Phillips was asserting with the persecution of gay people during the Holocaust, as well as to the theological arguments used to support the institution of slavery. This seemed to nettle the majority on the Court.)

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The decision was read by Justice Anthony Kennedy, and it seems to be an attempt to middle this issue, and to temporize on deciding definitively the volatile issue of equal protection vs. an asserted claim of religious liberty. Kennedy and the majority left open the possibility that the Court could rule the other way, if a state commission’s deliberations met the standards of fairness and neutrality that the Colorado’s commission did not. From the decision:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

What the hell that means as regards future cases in this area is beyond me. For the moment, anyway, it seems that the most basic question of the case remains unresolved, stuck in a maelstrom of lower courts and administrative bodies, while both sides live to fight another day. Kennedy, you recall, was the deciding vote in the case that legalized marriage equality throughout the country, so he’s got a legacy to protect there, which he tries to do by anchoring his decision on the intemperate rhetoric of the Colorado commissioners while asserting his support for non-discrimination as a working policy.

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Again, from the decision:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then 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 that ensure equal access to goods, services, and public accommodations.

However…

The decision also can be easily read as a signal from the Court’s conservative wing to conservative Christians that a more sweeping assertion of religious liberty might be out there waiting for Kennedy to retire and for the current president* to get another seat on the Court to fill. Hold your fire, they could be saying. Kennedy can’t last forever. And, since I feel safe in a assuming that the next nominee from this administration* will not be Zombie William Brennan, this decision is most significant in that it raises the stakes of the 2018 midterm elections even higher, as practically everything these days does.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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