Hmmm: SCOTUS vacates religious-freedom case, orders reconsideration

Did the Supreme Court punt or pass on religious freedom, or did it deliver a kick in the pants to lower courts? It’s tough to tell from the competing media reports, but the owners of the now-defunct Oregon bakery Sweetcakes by Melissa are off the hook for $135,000 in fines — for now. The court vacated a lower-court ruling that upheld the fines against Melissa and Aaron Klein for refusing to work a same-sex wedding.


It’s a punt, reports USA Today:

The Supreme Court declined Monday to decide whether an Oregon baker can refuse on religious grounds to design a cake for a same-sex wedding – a question it carefully sidestepped last year.

The case would have given the court’s conservative majority the chance to expand upon its narrow 2018 ruling in favor of a Colorado baker. That decision did not apply beyond the case of Jack Phillips, owner of Masterpiece Cakeshop, who the justices said was discriminated against by state regulators.

The new case involves Sweetcakes by Melissa, a custom cake business operated by Melissa and Aaron Klein outside Portland, Oregon. They were fined $135,000 for refusing to serve Rachel and Laurel Bowman-Cryer, who sought a wedding cake for their nuptials. As a result, the Kleins closed shop.

Rather than hear the case or deny it outright, the justices on Monday sent it back to a lower court to take its 2018 ruling into consideration. That represented a delaying tactic, saving the Kleins from the six-figure fine for now.

No, it’s a pass, the New York Times tells its readers:

The Supreme Court on Monday declined to hear an appeal from the owners of an Oregon bakery who were fined for refusing to create a wedding cake for a gay couple. In a brief order, the justices instead returned the case to lower courts in Oregon “for further consideration” in light of a decision last year in which the court ducked a similar issue in a case concerning a baker from Colorado.

The court’s action on Monday left still unresolved the question of whether many kinds of businesses, including florists, photography studios, calligraphers and tattoo artists, may discriminate against same-sex couples on religious grounds.


NBC News thinks it’s a kick, aimed at the courts that ruled against the Kleins. In their order, the Supreme Court directed lower courts to consider their 2018 ruling in Masterpiece Cakeshop, in which the court determined that laws and enforcement targeting people for their religious beliefs violate the First Amendment:

The U.S. Supreme Court on Monday dealt a partial victory to the owners of an Oregon bakery who were fined for refusing to provide a cake for a lesbian commitment ceremony.

The justices wiped out lower court rulings against the bakers and sent the case back for another round of hearings.

The legal dispute raised the same issues that arose a year ago in the case of a Colorado baker who refused to provide a custom cake to celebrate the wedding of two men. That baker, Jack Phillips of Masterpiece Cake, said it would require him to act against his religious views and violate his right of free speech.

The court failed then to resolve the central issues in his case, ruling instead on narrow grounds unique to him. Religiously affiliated groups were hoping the justices would use the Oregon case to answer the hard questions it avoided last year. But sending the case back to the lower courts, with instructions to reconsider their rulings in light of the Colorado case, gives the lower courts very little to go on.

Maaayyyybeeee. The act of kicking it back to the lower court sends its own signal, especially while vacating the fines against the Kleins. The court may have “failed to resolve the central issues” in the Masterpiece Cakeshop opinion, but they made it pretty clear which direction they were leaning. Subsequent decisions in NIFLA and Janus made it even more clear that they want to dismantle state-imposed forced-speech provisions.


After all, vacating the earlier judgment is a rather expressive step in itself:

Plus, the court has to be aware of Colorado’s continuing persecution of Jack Phillips. The owner of Masterpiece Cakeshop has not gained any peace from the Supreme Court’s decision last year, and the conservative majority now on the court is likely to take an even dimmer view of the obvious state hostility towards Phillips’ and others similarly situated. This order at least appears to be a message that lower courts and states did not take the proper lessons from the top court’s trilogy of opinions on forced speech imposed by government. The Supreme Court, at least, believes Masterpiece Cakeshop has a very good chance of changing the outcome of Klein v Oregon BLI.

That’s good news for the Kleins in the short term, although they will have to go back to court again to defend themselves, even though their business has been destroyed. Or maybe they won’t have to appear in court again, if the state of Oregon reads what barely fits between the lines of this order. One can argue that it’s rude or impolitic or even hateful to decline to work same-sex marriages based on sincere religious belief — but in a free country and a free market with a First Amendment, it shouldn’t be a crime that allows government to destroy businesses. Let the consumers in the market make those choices.


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