Instead, the Court, in an opinion written by Justice Anthony Kennedy, pivoted to familiar ground for the Court: Had either side decidedly won, which neither did, we would have had gloating on one side and disaffection on the other. Accordingly, the Court held that under the Free Exercise Clause the government may not express animus toward any religion.
Many have noted that what the Commission actually said was not historically inaccurate. The message here was that government needs to be neutral, indeed, not just neutral, but ruthlessly neutral when it considers religious claims. It needs to go out of its way to be neutral.
I see nothing wrong with that message. And it does not matter to the Court what religious faith it is facing. This reasoning pushes government actors to watch their words and their predilections. In a world of increasing diversity that is not a bad message. Yet, the Court did not at any point say that the baker had a right to discriminate against any couple. Quite to the contrary, the decision repeatedly affirms the reasoning of Obergefell v.
Hodges and the dignity interest of same-sex couples. Moreover, Justice Kennedy repeatedly made a statement I did not expect to figure into the decision but it became part of the scaffolding. At the time of the refusal, same-sex marriage was not yet legal.
In other words, the baker had more reason to think then that he was acting within the bounds of the law than he might, say, now, after Obergefell. The Court was giving this baker an out, which none today would have. Nor did the Court give a wink and a nod to all storeowners to discriminate away. Instead, it would appear that a neutral Commission could impose the public accommodations law on a baker and require service.
Conservatives argued vociferously and quite self-righteously that the baker had a free speech right not to be compelled to put a message on a cake with which he disagreed. This decision will be quite helpful in the clergy sex abuse cases as it dissects belief from conduct. Instead, they must be careful to be respectful of the right to believe, must look solely at the conduct, and then issue rulings that fit the conduct.
Smith all over again. The lesson of Smith is ruthless neutrality as it opens the door to prevent religious actors form harming others.