Win by animus; lose by animus. That’s the message of the highly anticipated Masterpiece Cakeshop decision, in which the U.S. Supreme Court held Monday that a baker could not be found liable for refusing to bake a wedding cake for a gay couple because the Colorado Civil Rights Commission had treated him with “hostility” based on his religious beliefs. The decision, however, is not as bad for gay rights as it could have been.
Justice Anthony Kennedy, who wrote the opinion, has spent the past 25 years developing a theory of gay rights according to which the government could not treat gay people with animus, but must respect the equal dignity of all. In this opinion, he applied a version of the same theory to the Christian baker who was found to have violated Colorado’s anti-discrimination law - and found that the baker had been subject to hostility.
The Colorado civil-rights commissioners who heard the baker’s case had disparaged his religious faith and compared his discriminatory conduct to slavery and the Holocaust. This, Kennedy said, amounted to a violation of the free exercise of religion.
This result may be a bit confusing to anyone who thinks, as some of the commissioners did, that the baker, Jack Phillips, was exhibiting hostility to the gay couple by refusing to bake their wedding cake. The legal difference, however, is that the U.S. Constitution only protects citizens against hostility from the government, not hostility from their fellow citizens. That is why Kennedy was able to focus his opinion on how the commission treated the baker, not on how the baker treated his customers.
The Masterpiece Cakeshop decision is also important for what it did not say, but only implied. Kennedy avoided a general pronouncement that religious believers should be exempt from anti-discrimination law. He avoided holding that the baker had a free-speech right not to make the cake.
Intriguingly, the decision can be understood as a hint that President Donald Trump’s Muslim travel ban may be struck down later this month, as the travel ban can be read as expressing hostility to Muslims. The two most pragmatic liberal justices, Elena Kagan and Stephen Breyer, concurred in the Masterpiece Cakeshop decision - which suggests that they wanted to show Kennedy they are on his side against religious hostility, and want him to vote with them on the travel-ban case.
Kennedy’s opinion can be read in part as a model of avoiding the hardest issues raised by a case. In its broadest form, the scenario of the baker who won’t bake the cake for the gay couple poses a deep conflict between the baker’s liberty and the couple’s equality. That’s an extraordinarily tough conflict to resolve, especially for Kennedy, who has made equal dignity for gay people into his jurisprudence hallmark.
By focusing on the idea that the commission disparaged Phillips, Kennedy was able to avoid saying anything too concrete and precedent-setting about whether the baker’s freedom should trump the couple’s equality. Justice Clarence Thomas, who did not join Kennedy’s opinion, wrote a separate concurrence suggesting that the baker’s case precisely reflected conflict between gay marriage and free speech.
In contrast, Kennedy insisted on the couple’s right to equal dignity and reaffirmed the gay-marriage decision, Obergefell v. Hodges. That was a significant development in a decision joined by conservative justices John Roberts, Samuel Alito and Neil Gorsuch. It doesn’t bind them never to overturn Obergefell, but it is a signal that they were willing to recognize the gay-marriage decision as precedent.
Kennedy similarly avoided saying that baking a wedding cake is a form of free speech. Rather, he made respectful noises in both directions, commenting that most people don’t consider a wedding cake to be speech, but also noting that “new contexts” can lead us to “deepen” constitutional meaning.
Kennedy focused on a statement by a commissioner that “freedom of religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust * to me it is one of the most despicable pieces of rhetoric that people can use to - to use their religion to hurt others.”
This, Kennedy said, was disparagement on the basis of religion.
It’s worth noting that no one deciding the case, including the commissioner, repeated this sentiment. Nor did the briefs in the Supreme Court case focus on the comments, which came up only in oral argument.
What this suggests is that Kennedy was really trying hard to find a way to resolve the case without declaring a broad legal principle - and used the comments to do it.
The intriguing consequence of this decision is that it doesn’t really provide definitive guidance even for future wedding-cake cases, much less other conflicts between religious conscience and gay rights.
Yet the case does provide a tantalizing hint that Kennedy might provide the fifth vote to strike down the travel ban. Trump’s anti-Muslim comments are more explicit, offensive and repellent than anything the single commissioner said. What’s more, the president was the sole decision-maker with respect to the travel ban, not just one official who was part of a long, iterative process like the commissioner.
In the travel ban or oral argument, Elena Kagan seemed to be pushing Kennedy toward considering the president’s religious hostility. Her vote, and Breyer’s, in the Masterpiece Cakeshop case provides further support for the hypothesis that she is pushing Kennedy to use the same animus principle to strike down the ban. Whether the strategy works is something we will know soon enough.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”