Thread by @adambonin

I've read a lot of smart things about #MasterpieceCakeshop in the past 30h, and it's clarified my thinking. There is so much unresolved, but I want to tease out a few things which seem clearer to me:

1. This particular baker would lose before the Supreme Court if the case had originally been heard before a neutral arbiter. The record seems clear that he did not want to produce goods for any same-sex ceremony, even if it required no artistic/personal expression on his part.

(As Justice Ginsburg notes in dissent, one can easily draw a line between Cakes With Words and Cakes Without.)

2. And the Court is clear that if we're just talking about selling *goods*, there's no religious exemption.

3. The Court leaves unresolved, of course, what happens if the cake really *does* contain a specifically pro-marriage equality expressive element -- same-sex caketoppers, a rainbow flag, whatever. But we know a few things, and not all of them good:

3(a). The good part: Justice Kennedy carries forward his historic concern about LGBTQ dignity into this realm: whatever the shopkeepers *may* be able to do, they can't do it in a way which humiliates people. He says it twice.

3(b) But. But that suggests there *is* some non-stigmatizing way to deny services, and I don't see how that's the case. That the Court leaves the door open for a Perfectly Polite Discriminatory Baker is the problem.

3(c) Moreover, the Court had no problem fifty years ago, in Piggie Park (as cited by Kagan, concurring) in finding claims of relgious exemption from the Civil Rights Act of 1964 to be patently frivolous-- though it's easier to find a speech element in *some* cakes than bbq.

4. So maybe when this sort of case comes up again, Justice Kennedy determines there's too much stigma in the denial. But, maybe, it's no longer Kennedy on the Court. What happens then? Assuming he's replaced by a conservative justice, then the Chief Justice becomes swing.

4b. We know the Chief isn't Scalia or Thomas. His Obergefell dissent was about the Court's institutional role, not animus. He seems sincere in his desire for a restrained jurisprudence, giving chances for the democratic process to work things out before making broad rulings.

4c. So I suspect Roberts, too, tries to prevent such a case from coming up for awhile. See if the culture shifts sufficiently that the exemption issue largely erodes. After all ...

4d. So it's possible the majority sets up a test that no business can pass -- that there is no denial absent stigma, and stigma > any free exercise rights. And it's possible that commercial opposition gradually disappears. But I doubt it.

4e. I ultimately remain a pessimist. If Kennedy wanted to rule for the couple and consign the adjudicatory bias issues to a tut-tutting footnote, he could have. Instead, to preserve his legacy as being pro-gay rights, he avoided a ruling here where he'd have opposed them. YMMV.