aviel wrote:The majority didn't say that cakes with Leviticus 18:22 quotes had to treated the same as cakes for gay weddings. Only Gorsuch's opinion (joined by Thomas) said that. The majority only said that, if the civil rights commission wants to treat them differently, it has to provide a better reason than that it found the Levicitus quote offensive. Four of the justices even agreed on the specific better reason expressed in Kagan's concurrence. (Three more justices expressed no opinion on that justification).
Four? I count only two: Kagan and Breyer. Are you counting Ginsburg and Sotomayor here?
If so, then that still leaves a 5-4 majority for treating such cases the same, a view the four conservatives and Kennedy have already endorsed. No justice has expressed "no opinion" on the matter; I don't know how you got that idea. Roberts is the closest, but even he signed on to Kennedy's opinion and declined to join Kagan's or write a concurrence of his own, which sends a distinct message.
Additionally, the majority opinion made itself very clear that it was not a license for discrimination. For example, Kennedy explained:
[W]hile ... religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
And if that quote wasn't specific enough to make it clear that the opinion should not be read authorizing religiously motivated discrimination, Kennedy clarified:
[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying "no goods or services will be sold if they will be used for gay marriages," something that would impose a serious stigma on gay persons.
I can see how it would appear that way. However, Kennedy is drawing the same distinctions and referring to the same limiting principles that religious liberty litigators have been hammering on for years in response to this case: specifically, the distinction between art and mere "goods", and the distinction between refusing a particular project for conscience reasons and refusing a customer in toto due to a protected identity. What he's saying is entirely consistent with what religious-liberty proponents have been arguing, which is not that people should be free to issue blanket denials of service to gay people. Rather, the argument is that a narrow exemption should be made in cases where someone is being asked to use their art to express a message they disagree with, whether the speech takes the form of an article, a painting, or the celebratory words and symbols on a custom-decorated wedding cake.
Kennedy's quoted words draw a distinction between this and forms of discrimination that religious liberty proponents largely do not support, like refusing to provide any goods or services (whether custom-made or not, and whether the good or service endorses their union or not) to gay people, as well as to outcomes that religious liberty proponents expect to easily avoid, like a situation where a gay couple can't reasonably find a baker to make a wedding cake for them because every bakery within 50 miles is an independent shop run by a Bible-thumper (hell, even in the Deep South there's always Wal-Mart). He's not rejecting the religious liberty line on the issue; he's echoing it.
On a more practical note, I'd like to point out that the practical effect of the ruling was to allow Phillips and others in his situation to discriminate. The Court didn't outright say "discrimination is okay if these conditions are met", but they did reverse the judgment against him and impose a likely insuperable obstacle to having it reapplied, in practice guaranteeing his freedom to discriminate even if they declined to put it that way. So it seems absurd to argue that the Court's opinion demonstrates that it wouldn't allow...the very thing it just de facto allowed. I mean, if a man sticks a gun in your face and demands your money, but insists he isn't robbing you and goes on a big speech about how robbery would be terribly wrong, which are you going to believe? His words or his actions?