I knew when I posted a summary of what cases were left for the term, that there were good chances that the Supreme Court would issue a “stop the presses” opinion today that would be difficult to explain, given how many major cases were left and that several of them had some weird procedural issues.  Well today, we got one of those opinions that everybody was waiting for, and it turned out to be a big dud that ultimately decided nothing other than the individual case.

Masterpiece Cake was one of those cases that seemed to be major.  Earlier this decade, as states began to recognize the right to same-sex marriage and to expand civil rights laws to cover sexual orientation, fundamentalist public interest groups have been seeking to push cases to allow true believers to exempt themselves from generally applicable laws, primarily related to same sex marriage but also to contraception and “morning after” pills.  And eventually, they managed to get the United Supreme Court to accept Masterpiece Cake as the test case for this issue.   The basic issue as presented by the parties was whether the Free Exercise Clause or the Free Speech Clause of the First Amendment allows a seller of expressive products to refuse — based on their religious or political beliefs that homosexuality is morally wrong — to provide a product to a same sex couple.  In this case, the product was a cake for a reception celebrating a same sex marriage.  While there was nothing on the cake that expressly endorsed same-sex marriage, the claim was that merely providing the product effectively signaled an endorsement of the marriage.

A problem, however, developed during oral argument.  In Colorado, the initial stage of a civil rights case is a hearing before an administrative body — the Colorado Civil Rights Commission.  During that hearing, one of the members of the Commission committed a gaffe.  In addressing the assertion that the baker should be allowed to discriminate based on a sincere religious belief, one of the commissioners noted that religion had been used to support slavery and the Holocaust.  This statement met all of the classical definitions of a gaffe:  it revealed what the speaker truly thought; as a factual assertion, it was technically defensible (as religion has  been used, and conservative are willing to admit is still true in the case of some Muslims, to support horrendously evil acts); and it is not something that is acceptable to say.    In terms of this case, however, it supported the proposition that the baker did not receive a fair hearing on the issue of whether he should receive some type of exemption from civil rights law based on his religious belief because, at least one member of the Commission, believed that religious beliefs are entitled to no wait whatsoever. Continue Reading...