Bake me a cake . . . as slow as you can.

On Monday, the U.S. Supreme Court gave its decision on an appeal from a Colorado baker who had refused to make a wedding cake for a gay couple based on his own religious views that oppose gay marriage.

The two men had appealed to the Colorado Civil Rights Commission (CCRC), which decided in favor of the gay couple, saying that the baker had violated the Colorado anti-discrimination law that bars businesses from refusing service based on race, sex, marital status or sexual orientation.

SCOTUS reversed that decision by 7 to 2, finding that the commission had not given the baker a fair, unbiased hearing due to the very hostile views toward the baker's religious beliefs expressed by one commissioner in the hearing -- who had likened his religious views to slavery and the Holocaust.   In addition, the opinion cited the fact that the commission had ordered the baker to undergo anti-discrimination training.

What this seems to say is that, in arguing against anti-gay discrimination, at least one CCRC commissioner had exhibited anti-religious bias, i.e., had violated the baker's 1st amendment rights.

The SCOTUS opinion made it clear, however, that other similar cases that test the wider principle -- the one that arises when religious freedom of expression collides with anti-gay discrimination in the world of commerce -- "must await further elaboration" in other cases.

While not spelled out explicitly, I believe the justices were struggling with the fact that this is a very poor case upon which to make a decision that would bring sweeping social change.    The baker made it clear that he was not opposed to selling to gay people and would have sold them any ready-made cake he had.

Second, the Civil Rights Commission hearing sounds like a travesty of respectful discourse about clashing ideals.   Justice Kennedy says, in effect, please, let's find a better case in which to  move this clash of major principles forward.   And treat each other with respect.

I believe the justices are trying to go slowly on a very controversial clash between two principles important in our society.   Justice Kennedy, who wrote the majority opinion, found a narrow but decisive aspect of this particular case that allowed him to forge a large majority.     This is part of the inside SCOTUS thinking about decisions that will bring sweeping changes in society.

It keeps the issue alive, to be decided another day in another case, meanwhile allowing public opinion to evolve.  And it does explicitly affirm the right of states to protect gay citizens from discrimination.  The opinion states:  "gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth."

But, once again, it tells gay people they have to wait for full equality in our society.   On the other hand, some religious groups have also been told for centuries that they are not acceptable in our society:  in our country alone, that has applied at times to Jews, to Catholics, to Muslims, as well as other smaller groups.

Here is part of Kennedy's opinion, which was joined by conservatives Roberts, Thomas, Alito,  and Gorsuch;   and by liberals Breyer and Kagan.   Justices Ginsberg and Sotomayor dissented.

"The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market."

In other words, we have to find a way to balance these two, sometimes, conflicting principles.  Obviously, different people, different justices, are going to find that balance line as either closer to one principle or to the other principle.    It is changing over time toward non-discrimination; but that is a slow process, unacceptable to most people who are subject to the discrimination.  It's also true that more and more religious people are themselves opposing such discrimination.

What isn't being much discussed yet in this case -- as must be in such clashes of principles -- is the relative degree of harm or deprivation between the two principles.    In my view, there's no room for equivocation at all when it comes to slavery -- pitting "property rights" against a human being's basic freedom and control of his own person.

I'd also be suspicious of any argument against selling a ready-made cake to a gay person.    The decorating of a cake puts a wrinkle in it, moreso when the baker considers himself a creative artist, and therefore the product is a expression of himself in some way.

It seems fatuous to many of us that the religious right is now trying to cast their case as one of "anti-religious discrimination," claiming that their rights to expression of their religious beliefs are being curtailed -- when it's only the right to discriminate and hurt others that is being curtailed.

What about the principle that "your rights end where my nose begins"?   We'd all probably agree on that when it comes to violent acts.   It's trickier when it comes to things like opinions and identity. What about when your "right" means I can't freely be who I am?   Or can't have what others have because of who I am?

OK, but the baker isn't saying you can't have a wedding cake;  he's just saying he can chose whether to make it specifically for you, decorated to express something for you that he does not endorse.  Even so, the baker is not stopping you from getting someone else to make it.

It seems to me that the line has to take into account whether the artist is engaged in a creative, unique endeavor, involving his own feelings.  Is so, you may be near the permissible line for him to say whether he will do the job for a particular person.    You can require that any generic cake be for sale to anyone.   But can you require an artist to generate, using his own feelings, something he does not, cannot, feel?   Or toward which he has negative feelings that would interfere with his ability to do the creative work that you want?

A significant ancillary fact is that gay people don't get a level playing field.  Colorado is one of only 21 states with a law that forbids discrimination in public accommodates based on sexual orientation.  Only 20 states prohibit anti-gay discrimination in employment.   And the federal government does neither.

Let's clarify what this SCOTUS decision did NOT do, because some people are seeing it as more negative than it is.    It does not take away anything that we already have.   It is disappointing because it did not bring the positive change we hoped for;  and, at best, in its opinions, it moves a little bit forward, but very slowly.  It left the big question yet to be answered -- even though I think it implies that the opinion writer expects that it will be answered in a satisfactory way . . . in time.

As Emory University law professor was quoted on CNN:  "The Supreme Court (respectfully) kicked the can down the road."

Ralph