Re-reading Masterpiece Cakeshop this morning, I noticed a startling misconception in Justice Kennedy’s majority opinion that Justice Kagan brilliantly (or disingenuously, or both) exploits in her concurrence.
The trouble is here, where Kennedy criticizes the CO Court of Appeals’ justification for permitting three bakers to refuse to bake cakes disparaging same-sex marriage but requiring Phillips to create a cake celebrating a same-sex wedding. 
Kennedy says the lower court illicitly based the distinction on the "government's own assessment of offensiveness". But that's a facile (and wrong) reading of the CO court opinion. Here's the full footnote in question:
The *court* was not taking sides on what's offensive and what isn't: it said the *bakers* refusing the anti-SSM cakes found those messages offensive. (All confusion could have been lifted if the court had written "the *perceived* offensive nature of the requested message".)
But Kennedy runs with this mistaken view of the justification, and Kagan doubles down, saying the lower court erred but there's a better way:
Trouble is, that purportedly better way is exactly what the Colorado Court of Appeals *was* trying to say in its footnote. It's especially clear in the second half of the fn, which neither Kennedy nor Kagan mentions
In other words: it's *not* OK under public-accommodations law to refuse business based on a protected identity marker like sexual orientation. It *is* OK to refuse business for other reasons. Kagan and the CO court are on the exact same page.
Why is this important? Kagan's strategic endorsement of Kennedy's misreading of the lower-court decision allows her to co-opt the majority for her own purposes...
....thereby articulating a framework for how SCOTUS can legitimately turn down future 1st am claims from religious business owners (like Arlene's Flowers) who balk at selling goods/services for same-sex weddings. END
Happy to see the estimable @Profepps had the same take on this part of AMK’s opinion yesterday theatlantic.com/politics/archi…
