Masterpiece Cakeshop Ruling

Friends, I've felt ill about the Masterpiece Cakeshop ruling all day.  (For an explanation of the case, see my last post.)  As you probably know by now, the Supreme Court ruled against Charlie and David, the gay couple who were refused a wedding cake because of their sexual orientation.

The big issue in the case was whether baking a cake was "speech"--that is, whether Colorado's requirement that the baker treat gay and straight people the same was making him "speak" in favor of gay marriage.  If baking a cake was speech (like painting a mural probably would be), it would violate the baker's First Amendment right to free speech.  If, on the other hand, it was more like providing a service (like selling someone a couch probably would be), it would probably not violate the baker's First Amendment right to free speech.  In oral argument, this was the issue the Court spent most of its time on.

However, the Court did not rule on this issue.  Instead, they said that the baker's freedom of religion (a different part of the First Amendment) had been violated by the Colorado Civil Rights Commission, which decided the case before the case even hit the courthouse.  They essentially said that the Commission had been "hostile" to religion.  The part that seemed to incense them the most was:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

Personally, I disagree that this is hostile to religion.  I think it's a statement of fact: religion has been used to justify all these things.  It seems to me that the commissioner was just trying to say, "Hey, freedom of religion isn't dispositive--you don't get to do anything you want by claiming it's against your religion."  But--as I understand it--the Supreme Court said this embodied discrimination (that is, the commission committed discrimination, not that the baker's freedom of religion would have been violated if he'd had to bake the cake, just that the Colorado Civil Rights Commission didn't give him a fair shot).  

So in theory, this isn't some major victory for anti-gay folks, just a reminder that states' processes need to respect people's freedom of religion.  In theory, this ruling leaves open the possibility that Colorado could still prohibit business owners from discriminating against gay people, but that they need to do via processes that don't violate anyone's First Amendment religious freedom along the way. 

But I still feel like (1) If they wanted to do that, they should have just remanded the case (meaning, sent it back down and told the state to redo the process in a fairer way rather than actually ruling on it; (2) Psychologically, sociologically, and culturally, this is a major defeat; (3) If they weren't okay with anti-gay discrimination, they would have ruled on the substantive issue; (4) Legally, this is going to set us back a bit and in the meantime, more gay people will be subjected to unfair treatment; (5) This feeds into the myth that religion and progressive politics are somehow inherently oppositional.

For more reading about the case, I recommend the New York Times and SCOTUS Blog.

Any other takes on this?
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