The Supreme Court whipped up a puzzling confection in the recent Gay Wedding Cake case. It’s not so much that the baker won and the same-sex couple lost. The Court told the Colorado Civil Rights Commission, which ruled against the baker, in the future not to air out their personal views and sent the case back down to be reheard. They told the Commissioners to shut up and decide.

It’s said that hard cases make bad law. This is one hard case. The majority teed off on the Commission for injudicious statements about how religion has been used as a pretext for inhuman behavior, citing slavery and the Holocaust. The Commissioners seemed to mix up racial intolerance with religious intolerance. No matter, at least nobody denied the Holocaust.

The comments by the Commissioners outraged the majority. Justice Kennedy wrote, “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable and by characterizing it as merely rhetorical—something insubstantial and even insincere. One commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects anti-discrimination on the basis of religion as well as sexual orientation.”

Two judges of the Court’s left-wing were almost as disapproving of the Commission. Justice Kagan, who voted with the majority, said that the Commission’s decision had been “infected” with bias and hostility against religion. Kagan didn’t disagree with the Commission’s finding.  They couldn’t allow it to stand. Perhaps Kagan and Sotomayor, on one side, and Gorsuch, on the other, are laying the groundwork for drawing majorities in future cases.

Justice Gorsuch didn’t think that the Court went far enough in pulverizing the Commission. He was focused on the difference between the Commission’s approval in other cases of other bakers refusing to decorate cakes with anti-gay messages requested by the prospective customers.

Justice Thomas wrote a long opinion advancing a freedom of speech justification for his refusal. This was the way the case was briefed but the Court clearly wanted to avoid the head-on collision. He was preparing for the next tilt between religion and discriminatory treatment..

As expected, the Fabulous RBG, along with Sotomayor, dissented from the decision. She didn’t sanction the Commission’s reckless statements but she didn’t connect those statements with a hostility to this baker’s religion. The baker wouldn’t sell a cake to the couple because they’re gay and getting married. They didn’t ask the baker to break any laws, distinguishing this case from another cake refusal, where the customer requested cake decoration which would violate the Colorado anti-discrimination law. 

In setting the Court up for another decision, they got this case all wrong. At Judge School, they’re taught to avoid big decisions if they can get by with a little one.  Their first mistake was taking the case after initially refusing it.  Once Gorsuch took his seat, his vote broke a deadlock, and five of the Judges voted to accept it. Having taken the case on, they could have disposed of it on less controversial grounds. Before the Commission got the case, an Administrative Law Judge ruled against the baker. The Commission upheld the ALJ’s finding. When a government agency decides a case, a court will  overturn it only if the decision is irrational; arbitrary and capricious as they say. None of the judges found that the Commission made a wrong decision, let alone an irrational one. Their vote to return the case to the Commission rested on the comments of two of the Commissioners.  There was nothing in the record of this baker case to connect the Commissioners’ ill-considered comments with its findings.

The Supreme Court sent the message that they will pursue judicial activism in the service of the judges’ personal views.   This can be seen in the comments of some Justices that show that they are giving religious freedom priority by scrutinizing the words of two Commissioners rather than the decision itself. This draws our courts one step closer to overriding administrative rulings.

The decision violates another judicial tenet—not to step into political issues. Colorado voters choose their officials. In fact, due to this case the Colorado legislature has been fighting over the bill that enables the commission. So, the composition of the Commission is a Colorado political process The Court superseded the Colorado  political process.

Some initially thought this was a win for the baker – it’s not. It has to be read as an elevation of the freedom of religion or as a first right among equals.  Agencies, and the politics or personal views of its members, will face scrutiny. They’ll have to learn  not to lead with their chins or wear their personal views on their sleeves.