TL;DR: I more or less take Kagan's view of it.
I don't have any objection, in principle, to the kind of analysis Kennedy does here. I think it's reasonable to say that, although the state can impose an antidiscrimination law that is neutral and generally applicable with respect to religion, it can't administer that law in a manner motivated by religious animus. That's essentially the same principle as the court articulated in
Yick Wo v. Hopkins,
118 U.S. 356 (1886) (ruling that San Francisco's exclusive enforcement of its facially neutral fire codes against Chinese-owned laundromats was unconstitutionally discriminatory), but applied to religion instead of race.
I'm not fully convinced by all of the examples Kennedy cites as proof of religious animus, however. For example, he points to statements by Colorado's commissioners which explained that someone who wants to do business in Colorado may have to compromise on some of his religious beliefs. But this isn't an expression of animus towards religion; it's just a restatement of the Supreme Court's principle that the First Amendment does not prohibit neutral laws of general applicability. See, for example,
U.S. v. Lee,
455 U.S. at 261 (1982) ("When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. ")
I'm more persuaded that a commissioner's statement calling Phillips' beliefs "despicable" and comparing them to support for the Holocaust, constitutes animus towards those beliefs. Godwin's law aside, I agree with a portion of the message of the commissioner's statement; homophobic beliefs, whether or not justified by religion, are discriminatory and abhorrent. But it isn't necessary to make that kind of adverse normative judgment of a religious view when deciding that Colorado's civil rights law is neutral and generally applicable. People don't get to use a religious belief to disobey the law regardless of whether that belief is detestable or sympathetic; and it's certainly not the place of the government to decide which is which.
The final explanation Kennedy gave for finding religious animus in the commission's decision, however, is a bit more complicated. He objected to the fact that the commission reached a different decision in the current case -- in which the commission decided that Colorado's civil rights law prohibited Phillips from refusing to sell a cake -- from other cases in which the commission allowed cake shops to refuse to sell cakes that bore homophobic messages along with religious text. In the other cases, the customers argued that the cake shops were discriminating against them based on their religious views, but the commission decided in favor of the bakers. Kennedy argued that the comission's decision to rule against Phillips but in favor of the other bakers could have been motivated by an unconstitutional preference against homophobic religious views.
While I agree with the majority that the commission did not provide a sufficient basis for distinguishing between those cases, I disagree with Gorsuch's and Thomas' assertion that there is no way to make that distinction.
Kagan got it right. In this case, Phillips would have sold a cake for use in a heterosexual marriage even though he wouldn't have sold the
exact same cake for use in a same-sex marriage. In the other cases on which the commission ruled, the cake shop owners would have refused to sell the requested cakes to anyone, for any purpose. Phillips' therefore can't claim that the expressive message conveyed by his cake exempts him from Colorado's civil rights law, because his refusal to sell the cake isn't about the cake's message
per se, but about the customers to whom he is selling.
Gorsuch and Thomas each fail to understand this distinction. Gorsuch, for example, characterizes Kagan's concurrence as suggesting that the distinction between a cake made for a same-sex marriage and a cake made for a heterosexual marriage doesn't matter enough to deserve First Amendment protection. Gorsuch then suggests that, by contrast, Kagan thinks that the difference between a cake bearing a homophobic message and a cake that doesn't have such a message is enough to deserve First Amendment protection.
The problem with this characterization, however, is that the difference between a cake made for a same-sex marriage and a cake made for a heterosexual marriage isn't just minute -- it's nonexistent. Phillips would have refused to sell the
exact same cake, already baked, to a gay couple for their wedding, even though he would sell it for use in a straight wedding.
Thomas also fails to appreciate this fact. Thomas' concurrence explains that wedding cakes convey a message, and therefore constitute protected speech under the First Amendment. Accordingly, requiring Phillips to bake a cake conveying a message with which he disagrees violates the First Amendment.
But, as Kagan explained, Phillips isn't being required to bake a cake conveying a message with which he disagrees. It's just that, given the existence of a wedding cake, Colorado law prohibits him from selling that cake for straight weddings and not gay ones. It's the same cake, regardless of customer. Colorado therefore isn't controlling the message of the cake, just the manner in which it is sold.
Thomas' analogy to
Brown v. Entertainment Merchants Association,
564 U.S. 786 (2011) makes this point clearer. Violent video games are, as the Court held in that case, protected expression under the First Amendment. But I don't think anyone would suggest, for example, that Gamestop could invoke the First Amendment to defend a refusal to sell a video game to a customer because of the customer's race. That's because the expressive value comes from the product, not its sale. And it's the creation of the product, not its sale, that the First Amendment protects.
Despite the fact that the Court was highly fractured in this case, I think there's a lot of agreement about the underlying law. Every justice except maybe Gorsuch and Thomas seems to agree, for example, that Phillips can refuse to create a cake which itself endorses gay marriage, but can't refuse to sell a cake he would have made anyway to a gay couple. Additionally, the Justices all seem to agree that, while antidiscrimination laws may be neutral and general applicable, they can't be administered in a manner that is discriminatory on the basis of religion. The primary source of disagreement seems to come from the facts -- specifically, the question of what cakes Phillips actually would or wouldn't bake, and for whom.
Hopefully on remand Colorado will be able to better articulate the reasons why it distinguished Phillips' case from cases involving a refusal to bake homophobic cakes, and the law can be settled correctly.