Okay, I've read all the opinions in Masterpiece Cakeshop. A couple quick thoughts...
First, as has been noted, the Court divided 7-2 on a narrow question: Did the Colorado administrative bodies that adjudicated this case express improper hostility toward the cakemaker's religious beliefs?
Seven justices, including Kagan and Breyer, said they did. Ginsburg and Sotomayor said that individual commissioners' arguably obnoxious comments were irrelevant to the outcome of the case.
Kennedy, writing for the majority, doesn't tip his hand on the core question of the case, but he drops several hints suggesting (somewhat obliquely) that he thinks the gay couple should have prevailed.
I think it's not unreasonable to read Kennedy's opinion as saying "full equal rights for LGBT people are all but inevitable at this point, and government officials shouldn't dunk on anti-gay claimants while bringing them."
To be clear: I don't think that's a NECESSARY reading of Kennedy, but I don't think it's an unreasonable one, and that reading fits with Kagan and Breyer's votes.
(Under that reading, Ginsburg and Sotomayor can reasonably be read as saying "It's 2018. Stop wringing your hands and bring equality already. Jeez.")
On the underlying issue—whether baking a wedding cake for a same-sex couple can be reasonably interpreted as a speech act in support of same-sex marriage—the vote in the Court isn't 7-2. It's...
4-3, against the proposition. Four justices say that baking a generic wedding cake doesn't become pro-SSM speech just because your clients are a gay couple. Three justices say it does.
Two justices are silent on that question. Kennedy is one, obviously, and Chief Justice Roberts, intriguingly, is the other. (I have some thoughts about the Roberts thing, but I'll keep them to myself for now.)
One weird thing: Kennedy circles back several times to the fact that SSM wasn't legal in Colorado when the incident that spurred this case occurred, hinting that that fact is legally relevant. I'm not sure what to make of that, but it set my Spidey sense tingling.
I've seen someone opine this morning that Kennedy's punt on this case suggests he may actually be retiring, and doesn't want to drop another big landmark case as he walks out the door.
I don't know what to make of that, but I could write the fanfic either way.
Gorsuch and Thomas's arguments that cakes made for same-sex couples are necessarily pro-SSM cakes are both dopey, but Thomas's are marginally less dopey than Gorsuch's, IMO.
Gorsuch's concurrence is just weak and goony, culminating with an extended riff on something called a "generality scale" that makes basically no sense at all.
"If you can tell by looking at a cake that it's intended to support SSM, it's a pro-SSM cake. If not, it's not" is the liberal rejoinder to Gorsuch in a nutshell, and it's devastating to his dopey argument.
Okay, that's my thoughts. Reminder: I'm not a lawyer, just a historian who likes reading Supreme Court cases in the bath.
Here's the PDF if you want to read it yourself, and I encourage you to do so. It's not as gnarly as I was worried it might be. supremecourt.gov/opinions/17pdf…
Oh, one last thing: The practical effect of this ruling is to leave the door open to a bunch of discriminatory activity, and—because it's been so widely misinterpreted—to appear to give SCOTUS support to such discrimination.
In that respect, today's decision was a real and meaningful defeat for LGBT rights, even if it turns out to be—as I hope—a temporary one.
One LAST last thing, since I seem to have given a bunch of you agita: I don't think Kennedy's retiring. I could be wrong, and often am, but I think he's sticking around.
