Columns » Jay Barth

Kennedy's half-baked ruling

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In his majority opinion in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, U.S. Supreme Court Justice Anthony Kennedy sided with Jack Phillips, the Colorado cake shop owner who refused to bake a cake for a reception for the wedding of two men. Phillips had explicitly noted his religious objections to their marriage and was sanctioned under Colorado's state Civil Rights Commission for his violation of state law. "Religious liberty" advocates from the White House to the Arkansas attorney general's office quickly and emphatically praised Monday's 7-2 court ruling. As Arkansas U.S. Sen. Tom Cotton put it in a statement: "Religious freedom is the first freedom, and the government ought not force people of faith to violate their beliefs. The Supreme Court has rightly decided that open hostility to religion has no place in a free country's government ... ." Kennedy's opinion, of course, was decidedly more complicated than that. Indeed, problematically, it's unclear what it really means at all.

In his attempts to develop the rules of the game in an America where "the rights and dignity of gay persons" are fully and simultaneously protected along with the "sincere religious beliefs and convictions" of purveyors of public accommodations, Kennedy articulates an attractive ideal. Indeed, it is what united seven justices on what is, in most major cases, a 5-4 court. In getting there, Kennedy targeted the overblown rhetoric employed by a member of the state Civil Rights Commission as evidence that the body acted in a manner that was "hostile" toward Phillips' religious beliefs. Kennedy said that, while anti-discrimination legislation is an important instrument for protecting and promoting the dignity of gay and lesbian individuals and couples, any such law "must be applied in a manner that treats religion with neutral respect."

But, it's thoroughly unclear how true "neutrality" can be achieved in such affairs. Kennedy employed a multipart definition of "neutrality" toward religion from a 1980s case involving a city ban on animal sacrifice that highlighted that non-neutrality can be evidenced by the "contemporaneous statements made by members of the decision making body." However, won't any debate by a governmental body include statements that some might perceive as "biased" against one's views? Does one ill-advised statement by a single member of a public body that votes unanimously to rule against a business undermine the entire effort?

In short, we are likely to see a series of cases that will lead to lower courts parsing the words of debates within administrative bodies or in statements by bureaucrats. Kennedy's decisions have provided very little guidance for those cases, the ultimate job of a good Supreme Court decision.

The seven-vote court majority included both the most conservative members of the court along with two of its more progressive members. Three concurring opinions emerged from that group. While Justice Clarence Thomas' concurrence argued in a decidedly more radical direction that would threaten the future of all antidiscrimination laws, two of them attempted to shape the "real" meaning of the Masterpiece Cakeshop case for future courts. Justice Elena Kagan (joined by Justice Stephen Breyer) agreed with the outcome because of the ham-handedness of the commissioners but emphasized that Phillips likely violated the very appropriate Colorado law: "Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples." Progressive groups like the ACLU emphasized this telling of the Masterpiece result. Justice Neil Gorsuch's concurring opinion (joined by Justice Samuel Alito) instead emphasized the differential treatment of the Colorado commission of two cases — that of Phillips and that of a cakemaker who refused to make a cake expressing anti-marriage-equality sentiment — as inherently problematic, writing "the place of secular officials isn't to sit in judgment of religious beliefs, but only to protect their free exercise."

Thus, the meaning of the empty Kennedy ruling in Masterpiece Cakeshop will be given substance by the winners of this real debate between the Kagan and Gorsuch perspectives. (Leaders like Cotton attempted to frame the Gorsuch view as the winner.) It's possible that Kennedy might get one more bite at the cake in a cleaner case on the topic in the near future — like that of Ingersoll v. Arlene's Flowers, a Washington state case awaiting the possibility for review at the court. Perhaps more likely is that a future court will decide the issue. Court retirements and presidential elections thus will be the ultimate determinant of which way the seesaw goes in Kennedy's failed balancing act between full respect for gay folks and full support for religious liberty.

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