Melissa and Aaron Klein
Melissa and Aaron Klein

Image via YouTube/Heritage Foundation

In short order we are going to find out what the current Supreme Court thinks of laws protecting gay people from discrimination in public accommodations. Aaron and Melissa Klein, owners of Sweet Cakes by Melissa have appealed their $135,000 fine for discrimination to the Supreme Court. The Kleins, by the way, have raised more than $500,000 through crowdfunding as supposed victims of persecution.

The Supreme Court should decline to hear this case. According to precedent there are no religious exemptions to otherwise valid law (Scalia, Employment Division v. Smith). The only reason that Masterpiece Cakeshop (Masterpiece Cakeshop v. Colorado CRC) was successful was because comments from the Colorado Civil Rights Commission demonstrated hostility to religion.

In the Masterpiece ruling, in an opinion written by Justice Kennedy:

Nevertheless,
while those religious and philosophical objections are
protected, it is a general rule that such objections do not
allow business owners and other actors in the economy
and in society to deny protected persons equal access to
goods and services under a neutral and generally applicable
public accommodations law. See Newman v. Piggy
Park Enterprises, Inc.
, 390 U. S. 400, 402, n. 5 (1968)

Kennedy addressed an exception for clergy, noting that a clergyman would not be forced to solemnize a wedding that he disapproved of.

Yet if that exception were not confined, then a
long list of persons who provide goods and services for
marriages and weddings might refuse to do so for gay
persons, thus resulting in a community-wide stigma inconsistent
with the history and dynamics of civil rights
laws that ensure equal access to goods, services, and
public accommodations …

Now Kennedy has been replaced by Kavanaugh (who clerked for Kennedy in the 1993-1994 term). It has been said that Kennedy orchestrated the nomination of Brett Kavanaugh.

Were the Court to hear this case, it is faced with a problem. If Oregon was “neutral to religion” which is a term of art, then, for the baker to prevail, it would be based upon free exercise of religion. That could effectively destroy every nondiscrimination law in the country.

A bigot merely needs to claim that, according to his or her religious beliefs, the conduct required by law is prohibited.

I have been terrible at predicting what the Supreme Court will do. Utterly awful. With that said I am not optimistic about the outcome. If the Court agrees to hear this case I think that it will find a reason to rule in favor of the baker.

The petition is 340 pages. Some poor clerk has to read all that crap.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.