Straddling the fence

The Supremes issued a ruling today in the case of the Masterpiece Cakeshop, the Colorado place that makes wedding cakes that refused to make one for a gay couple. Alas, it wasn’t a victory for us. But some are saying it isn’t really a defeat either.

The case was brought by the Colorado Civil Rights Commission. The Supremes’ ruling in favor of the cakeshop was mostly on a technicality. The Commission had failed to demonstrate religious neutrality when bringing the suit.

I’m puzzled. If the case is because Mr. Phillips, the cakeshop owner, is refusing to make a cake for religious reasons, how can the Commission maintain religious neutrality? The case is whether someone can discriminate because of religion.

Justice Anthony Kennedy wrote the majority opinion and seems to be trying to straddle the fence. In one paragraph he writes about the “dignity and worth” of gay people, that we can’t be treated as social outcasts, then also writes that religious objections to gay marriage are protected views and forms of expression. Such fence straddling has got to poke some sensitive places! It is clearly saying a gay person’s right to dignity is not as important as a religious person’s right to discriminate.

The disappointment is that Justices Elena Kagan and Sephen Breyer joined the majority, though they wrote a separate decision. Which leaves only RBG and Justice Sotomayor in our corner. As RBG is adept at doing she flayed the majority’s reasoning, not that it did us any good.

Some people are saying that this isn’t really an approval of a license to discriminate. The ruling was narrow and there is that technicality thing. The Supremes even say we can’t generalize from this ruling.

But Kennedy, usually the swing voter, clearly put the dignity of gay people below the religious right to discriminate. It’s out there, in the record. This ruling guarantees there will be more cases. And it is a race whether RBG or Breyer leave their post before the nasty guy does.