by Mitch Kokai
Senior Political Analyst, John Locke Foundation
One cannot help but be struck by the majority’s reticence from the outset: “Whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause.” Mind you, this is from the pen of Anthony Kennedy, a judicial supremacist who ordinarily interrupts his liberty bender only to scold the People — formerly known as the sovereign — to pipe down and quit grousing once the Robed Nine have spoken.
On this one, though, Justice Kennedy assures the Left it can grouse away. This ruling, in grudging accommodation of religious conviction, will not necessarily bear on the outcome “of some future controversy involving facts similar to these.”
To be sure, I am all for a Lincolnian construction that reduces Supreme Court rulings to a duly narrow resolution of the dispute between the litigating parties, leaving it to the republic to govern itself accountably. But that is not what’s going on here. This case is a one-off. The justices, manifestly pained, side ever so ambiguously with religious liberty, a founding principle of the nation, over gay marriage, a trendy progressive cause that would not remotely have been threatened in Colorado had Jack Phillips been left in peace to honor his convictions.