Masterpiece Cakeshop: A Slender Reed Case Doesn’t Break New Ground or Retreat from Constitutional Principles
The Supreme Court’s Masterpiece Cakeshop decision by Justice Kennedy follows the the unwritten Slender Reed Rule which goes like this: If SCOTUS has to decide a case with narrow facts that could lead to a precedent that’s either slender or rotund, go with the slender reed and save the big issues for another day. The slender reed Justice Kennedy used to pull in 6 of his colleagues was to blame neither the devout Christian cakemaker nor the gay couple looking for a wedding cake, but the Colorado Civil Rights Commission. The CCRC cooked the case against itself, in Kennedy’s view, by being hostile and disparaging toward religion in the administrative proceeding. CCRC had a duty to be fair and impartial and it wasn’t.
So the Slender Reed (and the narrow read) means that administrative agencies of government must observe religious neutrality. That’s not new law. But the Court’s repeated reminder of the “no government hostility toward religion” principle will travel to other cases, including, for example, the travel ban litigation where statements of religious hostility are in the record.
Masterpiece Cakeshop’s future importance is that it doesn’t retreat from existing law and principles of non-discrimination against gays as well religious free exercise. Masterpiece Cakeshop reaffirmed the Obergefell precedent upholding the fundamental constitutional right of same-sex couples to marry. The Court also reaffirmed the principle that “the Constitution can, and in some instances must, protect [gay persons and couples] in the exercise of their civil rights.” The Court also reaffirmed that in some instances religious objections to gay marriage may be protected forms of expression.
Let’s look down the road. What if a future case comes to SCOTUS that doesn’t involve a government agency to blame for its hostility. Let’s say a seller of a product or service refuses on religious grounds to sell the product or service to a gay person who then sues under a given state’s public accommodation law that prohibits discrimination. With the current mix of nine on the Supreme Court, it’s likely that the outcome of that case would turn on the facts around the product or service. The more generic the product or service, the more likely the public accommodation statute is violated. The more expression (Kennedy’s term) involved in the product or service (e.g. clergy services, or a customized work of art, or musical commissions and so on), the more likely the First Amendment protections against compelled speech and in favor of free religious expression come into play.