A half-baked cake may be better than no cake at all, but not much better. The Supreme Court’s decision that a baker with religious convictions against it doesn’t have to bake a cake for a same-sex wedding was the work of Justice Anthony Kennedy, who seems to have a schoolgirl crush on anything gay.
Mr. Kennedy has an aversion to clarity and a gift, if gift is what to call it, for writing a half-baked opinion that tries to straddle an issue. He might be happier and more effective riding side-saddle to get to the point.
Instead of offering a full-throated defense of religious liberty, something that would have clarified if not settled the issue of whether religious faith is something a believer is entitled to take seriously, the justice and the court delivered a bowl of mush, rife with sentimentality, that tried to give something to both saint and sinner.
The Colorado Civil Rights Commission had ruled that the convictions of the baker, Jack Phillips, were in violation of the state’s public accommodation law, and whether he wants to or not, he had to put something in the oven to join the homosexual couple in celebration of plighting their troth. Religious faith, one of the civil rights commissioners had said, was responsible for bad things, such as slavery and the Holocaust.
Writing for the majority, Justice Kennedy said Jack Phillips was “entitled to a neutral decision-maker.” Mr. Kennedy got that wrong, too. What the baker — and the rest of us — were entitled to was a clear, forceful decision not only upholding the right to believe, but to act on sincerely held religious belief.
Invoking Supreme Court precedents that tolerated expressions of white supremacy, Justice Thomas, in a concurring opinion, observed that “states cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable or undignified.”
The full-throated defense of religious liberty must await one or two or three deaths or retirements to give a president the opportunity to stock the Supreme Court with justices who will look beyond feel-good sentiment to the Constitution as the standard the law must meet. Until that time, a half-baked Supreme Court ruling, with indigestion for all, will have to do.
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