Court skirted real issue — limits of freedom of speech

In the long-awaited “cake case,” the Supreme Court avoided addressing any important issue and instead settled for ruling that comparing someone’s religious convictions to the Holocaust is probably not a good idea for public officials.

The underlying issue — where does freedom of speech stop when it comes to avoiding discrimination — was saved for another day.

The basic story is simple: A gay couple in Colorado wanted to purchase a wedding cake from a baker whose profound religious beliefs meant that he could not endorse gay marriage. He declined, and the matter went to the Colorado Civil Rights Commission.

It may come as no surprise that some of the commissioners made some very inflammatory remarks, including invoking slavery and the Holocaust and describing his faith as “one of the most despicable pieces of rhetoric that people can use.” The baker’s conduct is found to be discriminatory.

The case wends its way to the Supreme Court, which everyone expected, to address the deep issues of the intersection of freedom of religion — a baker who truly believed his religion precluded him from designing a cake for a gay wedding — and the gay couple’s right to be free of discrimination.

But the justices just wound up arguing over how badly the commission proceedings went wrong, both because of the hostile comments and the fact that the commission had been totally inconsistent with its own prior decisions. As a result, even traditionally pro-gay marriage Justices Elena Kagan and Stephen Breyer joined the majority in finding the baker’s freedom of religion had been impacted.

The best Justice Ruth Bader Ginsburg could do in defense was just wave away all the things that were said at the hearing claiming that they really didn’t matter, a position she might regret if the Supreme Court ever squarely addresses the various travel bans in the context of President Trump’s campaign statements.

So all we really know is that if you are a public official deciding a case about religious freedom, you might want to avoid insulting religion as such. The rest will have to wait for another time.