Mark Randazza is a genuine first amendment guy, though he’s a lawyer rather than a law prof. He has a tendency (ahem!) toward scatology, and it’s on display today (though not in the part I’m quoting).
Ultimately, in this case, nobody really “won.” The baker “wins” because technically he “won.” But, all he “won” was the right to have the charges brought against him without the administrative panel making snarky comments about his religious beliefs.
The cause of gay rights was not advanced at all. And, the real issue here — the First Amendment issue, is not being addressed at all — except in a pretty damn good concurrence by Justice Thomas, joined by Justice Gorsuch. (Starts on Page 38 of 59) His concurrence is, of course, foreshadowing either the majority or the minority when this case finally comes to a head. Thomas (I believe correctly) says that designing a wedding cake is no mere act of throwing eggs and flour into a bowl – but is full of artistic creativity. Harnessing (or enslaving) an artist to create that which he does not wish to create is a travesty against the First Amendment.
I agree. In fact, I commended Thomas’s concurrence in my long-form WordPress blog yesterday.
The wedding cake case should be easy. But there’s a huge LGBT Distortion Factor in the law currently — basically, if someone plausibly says “discrimination,” most minds shut down and the case is over without anyone getting out the Thesaurus to find “acumen” and “discernment.”