What the NBA Can Teach Justice Kennedy

In the Masterpiece Cakeshop case, Justice Kennedy crafted an opinion that avoided the consideration of two bedrock constitutional principles: freedom of speech and the free practice of religion.  Instead, he went to the Fourteenth Amendment (referencing the First) and sought out the "equal protection of the laws" as the basis for his manifesto.  Some commentators suggest that he is unsure of how to apply the First Amendment in the public square, so he makes it up as he goes.  His decision in Obergefell is cited as support. While this may be true, another theory seems equally valid.  Given the uproar over the 5-4 decision in Obergefell (redefining marriage) and the decisions legalizing Obamacare, it seems likely that Chief Justice Roberts looked for grounds that would allow a much larger majority on the Court.  The Colorado Civil Rights Commission supplied that rationale in...(Read Full Article)

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