In weighing religion versus equality, the Supreme Court takes the cake

In weighing religion versus equality, the Supreme Court takes the cake
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To read the headlines about the long awaited decision in the Masterpiece Cakeshop case, one reasonably might think the Supreme Court resolved the tension between a baker’s right of religious freedom and the freedom from discrimination guaranteed by Colorado law.

But the court did no such thing. Rather, Justice Anthony Kennedy, writing for the majority, concluded that, because the Colorado Civil Rights Commission’s consideration of a same-sex couple’s challenge to a baker’s refusal to make them a wedding cake reflected a bias against religious freedom, the ruling against the baker could not be upheld.

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Less than half of Kennedy’s 18-page opinion is devoted to explaining the underlying problem with the commission’s decision. The rest is a summation of the factual and procedural background, and a judicial recognition of the importance of the constitutional protection afforded religious freedom, on the one hand, and the state’s authority to protect certain individuals from the effects of undue discrimination, on the other.

This approach to constitutional decision-making reflects a longstanding inclination of certain members of the court to view particularly controversial constitutional cases from a minimalist perspective to say no more than is necessary to resolve the matter at hand, while reserving for another day the resolution of more complicated issues.

Kennedy has adhered to this approach even in cases that have, at first glance, appeared to be groundbreaking. Nearly two decades ago, for example, in Lawrence v. Texas, Kennedy wrote for a majority of the court in overturning a Texas prohibition on sodomy, reasoning that the Constitution protects private adult consensual relations. Pointedly, Kennedy ventured no opinion whatever on the constitutionality of prohibitions on conduct that fell outside that narrowly described box.

Chief Justice John Roberts, who joined the majority opinion in Masterpiece Cakeshop, has also favored the judicial resolution of cases in ways that do not further enmesh the judiciary in political disputes that would draw the wrong kind of attention to the court’s work.

This kind of judicial pragmatism transcends the typical labels the media seek to place on the justices. A pragmatic approach to constitutional decision-making — one that respects Alexander Hamilton’s observation that the court is the weakest branch of the federal government, possessed as it is of neither the purse nor the sword — provides the justices a path that allows the court to render judgments without, at the same time, limiting a wide range of future policy options.

This is a non-ideological approach to constitutional decision-making. It allows the justices to resolve disputes on a small scale, thereby increasing the potential for unanimity and defusing those cases in which the public and lawmakers are most likely to complain about judicial overreach.

Of course, decisions like Masterpiece Cakeshop may represent little more than delaying actions. The tension between religious liberty and our various commitments to the equal treatment of citizens in the United States is not likely to disappear any time soon. But when the court is again called upon to resolve this tension, it will do so after we have had more time to think about, and even act on, Kennedy’s reminder that the Constitution demands that we respect our fellow citizens, including the beliefs that distinguish us from one another.

Until that case arrives, decisions like Masterpiece Cakeshop allow the court to fulfill its responsibility to resolve the disputes before its narrowly, while leaving ample room for further democratic developments. In other words, Kennedy’s decision allows the court to eat its cake and have it, too.

Lawrence Friedman is professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”