The Masterpiece Cakeshop (gay wedding cake) decision is due out soon. I'm going to make a prediction. I predict the court will side with the bakery but will do so on due process grounds. Doing this will sidestep the thornier issues of whether a custom cake is speech and whether the bakers' free exercise rights were violated.
Honestly, I think most people should be hoping for this result. Whether you agree or disagree with what the bakers did, the process of enforcing that law is severely messed up. The Colorado Civil Rights Commission is an appointed body that does not require any of its members to be attorneys (in spite of the fact that the commission must interpret law and levy fines). At least four members must be from groups that have been or might be discriminated against. The proceedings are confidential and so the actions of the Commission are not subject to public scrutiny and have little oversight.
Think of it this way, imagine you're a business owner and you have a patron that gets upset and wants to make you pay. They file a complaint with this commission alleging you discriminated against them. Instead of going before a judge whose qualifications have been vetted by a judicial qualifications process, you go before a group of people with no legal training. In fact, the commission is likely biased towards finding discrimination. The proceedings are secret and you have no one overseeing what these people are doing.
Are you going to feel like you've received due process?
Hopefully the court recognizes that these secretive semi-courts run by unqualified people need addressed. Kennedy (the swing vote) seemed very interested in the due process issues giving me hope that this is the direction the court goes.
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