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T. Greg Doucette @greg_doucette
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This opinion on the "gay wedding cake" case turns out to be much narrower than pundits will claim it is. 7-2 ruling on the outcome, but carefully couched language throughout the majority opinion.
The Court almost entirely sidesteps the free speech and free exercise issues, as this line of the closing intro paragraph makes clear…
Majority opinion focuses almost exclusively on *procedure,* with emphasis on 3 things:

1️⃣ Same-sex marriage wasn't recognized in Colorado at the time of the baker's refusal (so there was at least a colorable argument that refusing was legal)…
(Not highlighted in the pic b/c I don't want to include all the precedent cites, but the Court continues that it hadn't issued its rulings in Windsor or Obergefell either)

2️⃣ The CO Civil Rights Commission – a Government agency acting under color of law – was not an impartial tribunal of the type required for due process, instead conveying hostility toward business owners with religious beliefs…
The majority opinion discusses the CRC's hostility to religion at length…
And concludes the CRC proceedings were likely unfair as a result…
3️⃣ The legal theory of the CRC's findings in different cases conflicted; it held that words on a cake in this case would be attributed to the customers, but that refusal to bake in other cases was OK b/c the words could be attributed to the baker…
Long-time listeners of @fsckemall have heard the Canon of Constitutional Avoidance, where a court should limit the extent of interpreting the Constitution to the bare minimum necessary to decide the case

If the CRC was religion-hostile, that's a wrap…
The SCOTUS precedents on government neutrality toward religion are old, lengthy, and thorough. By concluding there was hostility toward religion by the CRC, vacating their order was a given…
The emphasis on "in all of the circumstances in which this case was presented, considered, and decided" means the majority wants the effects of this ruling as precedent to be limited to its particular facts…
In her concurrence, Kagan spends extra time to point out that the CRC and Court of Appeals both screwed the pooch in their rulings, noting that their rationales distinguishing cases were rooted in "offensiveness" rather than the law. Breyer joined her op.…
Kagan also obliterates Gorsuch in a lengthy footnote…
The Kagan concurrence is essentially suggesting an alternative ground by which the CRC could have arrived at the same conclusion, and can do so in the future

We've talked about opinions like this before in, for example, search-and-seizure cases

The Gorsuch concurrence, in which Alito joins, essentially says the CRC decision can't be salvaged…
Because, in comparing the 4 different bakers discussed in the majority opinion, the key issue to Gorsuch is that the discrimination wasn't based on the *trait* of the customer (which is what the CO Anti-Discrimination Act prohibits)…
Despite Kagan's footnote, Gorsuch is right here IMO…
Justice Thomas concurs with the outcome – that the baker's rights were violated by the CRC – but writes separately to argue cake-baking is expressive conduct and the CO ADA fails strict scrutiny analysis. Gorsuch joins.…
Thomas also goes through SCOTUS free speech precedents, arguing that the baker's conduct was no worse than a number of other cases the Court concluded were constitutional…
Justice Ginsburg, with Justice Sotomayor, has a very Ginsburg-ian dissent.

She starts by agreeing with big chunks of the majority opinion, before blasting the rest of it…
Ginsburg also starts with a footnote hitting Thomas's concurrence, right on the first page…
Unless I missed it, Ginsburg's dissent is the only opinion that goes into the details of what was requested in the different baker cases considered by the CRC…
Ginsburg also goes hard af in the footnotes…
And Ginsburg concludes that – even if a couple commissioners on the CRC were hostile to religion – it doesn't matter because the baker still violated the CO ADA…
Thus concludes my synopsis on the Masterpiece Cake Shop ruling by the Supreme Court and its assorted concurrences and dissent

If you liked it:

1️⃣ Follow me if you don't already

2️⃣ Follow @fsckemall if you don't already

Also recommend reading the @Popehat mini-lawsplainer here:

And the @Popehat mini-thread on why the Canon of Constitutional Avoidance is A Good Thing™

When you want to comment on Legal Stuff but don't understand "narrowly" refers to the scope of what was decided and not the vote count


Not at all. I read every opinion and came away thinking "everyone has a valid point"

Same concept as the President claiming terrorists are Muslims and that getting used against him in interpreting the travel ban. The focus and frequency of comments that might be innocuous standing alone can betray underlying bias

My suspicion is that there were 4 votes for cert expecting a Big Decision (Thomas, Alito, Gorsuch, and either Roberts or Kennedy) but they couldn't get to a majority after the briefs and oral arguments

"Bad Cases Make Bad Law"

A fair summary, yes

Maybe. I agree it will be that way in the political sphere, but the repeated affirmations re "neutral laws of general applicability" – in the majority, Kagan's concurrence, and Ginsburg's dissent – will be cited by appellate courts in similar cases


Sort of. I'd say it's more like the referee having a Facebook post up calling the receiver a f*ckboi and promising to ruin his game somehow


The Court left that question to be resolved another day

Point noted, but that's also the nature of English. If I say "I like bass" there'd have to be context to determine if I'm talking about music or fish. Better-headline-writing only goes so far with homonyms.

Agreed. And tbh it's not beyond comprehension that Roberts would be a 6th vote given the institutional importance of precedent

Agreed it's a nit, but I'd also argue "don't interpret the Constitution at all if possible" and "don't interpret more parts of the Constitution than necessary" are parts of the same Canon

That's the intent, yes. In practice, what will happen is that appellate courts will rely on it when they want (b/c it's a SCOTUS op) and ignore it when they want (b/c it was phrased in a way that limits it to its own facts)

And the parts most likely to be relied on will be the passages jointly agreed on in the majority, Kagan's concurrence, and Ginsburg's dissent, b/c those passages definitely have a SCOTUS majority supporting them

Inevitable facet of all SCOTUS rulings though. I agreed with nearly all of Roberts's opinion in the Obamacare case, but how it was reported/represented didn't match the opinion at all

Part of why it's so important for ppl to understand the details, so they can push back against the willful ignorance :)

From my December thread on the case, about what would happen if SCOTUS ruled in favor of the baker

No, the case is over entirely.

If SCOTUS was sending it back to the lower courts, the last sentence of the majority would have had something like "and remanded for further proceedings not inconsistent with this opinion."


Annoyingly common since the first BBS forums

I'd imagine res judicata would apply regardless of Colorado law though

With the obligatory caveats that res judicata and collateral estoppel were my worst-performing sections of Civil Procedure class 😂
If he engages in the same conduct, he'll go through the same complaint / CRC / COA process.

It's similar to a criminal case dismissed because of Brady violations. You're still subject to re-prosecution for a new offense.

Fair. But tbh we see that all the time in the Fourth Amendment context, by liberal and conservative justices alike: bad searches upheld because, based on the record, the petitioner was guilty anyway

So what you're saying is you agree with how things are supposed to work but simultaneously will never win Senate confirmation to SCOTUS in this day and age? 😉

These too, definitely

Nah, it'll have to be a whole new case. No remand, just reversing the lower court decision upholding the CRC ruling.

I'm not sure they could even decide to rehear. If I were the baker, I'd argue res judicata applies: because a key issue was already litigated (the fairness of the process), the Government doesn't get a do-over

Idk if that would win though so

No. This baker could still be subject to the same process again if he does the same conduct with a different couple in the future. It's just that this particular instance of conduct won't be re-heard

Certainly possible. The only reason I don't think that's the case, though, is that the Ginsburg approach "won" at the lower levels, so no need to risk upsetting the apple cart

I'm sure there's a precedent, but you'd start with the Dictionary Act, 1 USC §1:

The Dictionary Act says that corporations are people
The specific contours of what happens when religious liberty bumps up against other protected rights wasn't decided today, but most everyone emphasized that "neutral rules of general applicability" are still valid

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