Thread by @burtlikko

Surprise #1 -- the decision was announced today, and not on the last Monday of the term.

Not A Surprise #1 -- the majority opinion was authored by Kennedy.

Surprise #2 -- it wasn't a 5-4 opinion.

Not A Surprise #2 -- Thomas wrote separately to say "Y'all got the law right but the law is fndamentally wrong."

Surprise #3 -- Breyer and Kagan joining the majority.

Not A Surprise #3 -- Ginsburg dissents.

Perhaps the most interesting thing to note:

Gorsuch joins Thomas' concurrence.

Looks like I've got some reading to do.

BRB

The factor that appears to have put Kennedy over the top for the Petitioner (the baker) is in section II(B):

Kennedy's majority concludes with what will surely be a fool's errand: attempting to say that this decision is confined to the specific aspects of this case based upon the conduct of the state commissioners who conducted the administrative review hearing:

I mean, come on.

They couldn't even come around to affirmatively and clearly saying "The holding of this case must be understood as limited to the facts described herein."

No one can miss the signal here: religion is given a privileged status in our polity, a privilege powerful enough to punch a hole in *ANY* law. The single exception to the religious exemption to laws of general application found in Hobby Lobby was antidiscrimination law. No more.

Kennedy and the majority offer a mealy-mouthed attempt to have it both ways at the end.

But the facts of this case requires the Court to choose one interest -- religious privilege or equal dignity -- over the other. And the Justices have announced their choice.

On to the concurrences.

Kagan's concurrence underlines that the commissioners evidence hostility to religion in their reasoning. In a different case where they demonstrated respect for the religion but reached the same result, Kagan implies she would have voted to affirm.

Gorsuch writes to specifically respond to Kagan: he points to a Christian customer turned away by secular bakers who refused to make an anti-SSM cake, which earned the blessing of the Colorado Civil Rights Commission:

Only Gorsuch is clearly wrong here: in the case at bar, the customers (two men) came into the shop and said they wanted a cake for "our wedding," and were then turned away. There was no discussion about what would be on the cake.

In the case of the secular bakers, the customer requested a Bible quotation and otherwise disclosed what the content of the cake was to be.

So I think Gorsuch in wrong here: Masterpiece Cakeshop turned these customers away for what they ARE (gay men and thus members of a protected class) rather than for the MESSAGE they wanted (the secular bakers were otherwise happy to do business with religious customers).

Goddamn Gorusch's concurrence is long. Kennedy got the majority opinion done in five pages. Gorsuch took twelve.

And that fellow does not like paragraph breaks.

Seriously, I feel palpably older now than when I started reading the concurrence.

Thomas' concurrence argues that the case could and should have been resolved on free speech grounds rather than free exercise grounds.

...At least he wasn't arguing "There is actually no such thing as incorporation, so the case should have been resolved on Colorado's state constitution's equivalent to the free exercise clause."

Quite the opposite: Thomas acknowledges that the free speech clause IS incorporated.

I have to get to work in twenty minutes so I'm going to skip over Thomas' free speech reasoning for the time being: the Court decided the matter on Free Exercise grounds and that is a more far-reaching facet to the case, one that carries the potential for great mischief.

Ginsburg's dissent argues that the comments pointed to in the Colorado HRC record don't actually evidence hostility to the religious beliefs asserted, and even if they did, that's no reason to reserve the result.

Ginsburg does not, however, wield a scimitar slashing at the broader scope of the Court's ruling, but a scalpel, calling out the majority for putting incongruous weight on statements from two of four commissioners made at one of four stages of review of the matter.

This is a missed opportunity for her.

Today's case rips open a protective strand in the law left in the Hobby Lobby case, one that offers an avenue of seepage that will allow erosion into a critical foundation of the very concept of law: the universality of its application.

The law must be law for everyone. A rule that applies for one person and not another is not a law for all, it is the fiat and preference of the sovereign.

By allowing exemptions to the applications of generally-applicable laws on the basis of a claimed "sincere religious belief," the Court offers no barrier whatsoever to any person escaping the force of any law at any time by claiming "...but my religion!"

Let no one here real into this a questioning of the petitioner's sincerity in his religious belief. One concern is that a future litigant will invoke religion insincerely. Another concern is that even sincere religious beliefs may well contradict the law.

By the reasoning of the Court today, what stops a member of the Church of Universal Love Between Man and Boy seeks an exception to the generally-applicable criminal law prohibiting the sexual exploitation of minors after being indicted for "engaging in the sacrament"?

I see none. Perhaps if such a terrible case does come to pass (and let us all hope it does not) we will finally see the Court create some kind of a test or measuring device to put a balance against the absolute privilege given to religion today.

It's a high water mark today for the Free Exercise Clause, and ebb tide for antidiscrimination laws. Such a flood may bring welcome water to those who thirst for the practice of their faiths, but the flood also threatens to erode the foundations of the law itself.

What we need is some sort of test, some kind of balancing mechanism to say "This is the point where free exercise rights are required to bow to other interests." Today, those rights appear absolute and paramount, privileged above all other legal interests on the landscape.

And with that, I'm going to have to step away and do my day job for a while. Enjoy your discussion, I'll join you later.

An interesting observation from @hughhewitt here. While he is much more pleased with the opinion than I, he may well be right concerning a factor of why he wrote as he did:

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Colleague and interlocutor @AkivaMCohen argues that the majority does not allow religious exceptions to swallow the whole of rules of general application. And indeed, the majority opinion does offer language to that effect in two places:

And here, before going on to reach the grounds used as the crux of the decision (kind of a quasi-due process violation, finding that the decisionmakers were not neutral towards religion):

It looks to me like the majority is trying to have it both ways here, which it can still pretend to do because the "You said mean things about religion" claim was how the majority punted.

We are told that there must be limits to the religious exception, but we are not told what those limits are.

We are told that there may be other cases with similar facts, whose outcomes are not resolvable today. We are told to hope that litigants invoking religious exceptions will be treated respectfully along the way, but that they might win or they might lose:

But we know today is that for any general law, there is a Free Exercise exception that can be claimed.

@AkivaMCohen is correct to point out that the majority wants this exception to have constraints, some limits.

We just have no idea what those constraints or limits might be.