Justice Kennedy Has His Cake and Eats It Too in Gay Wedding Case

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Let them eat cake? Photo: Chip Somodevilla/Getty Images

Way ahead of schedule, the Supreme Court today issued its highly anticipated ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, colloquially and reductively known as the gay-wedding-cake case. More accurately, the dispute is a complex clash of competing constitutional values, some as old and cherished as the republic: freedom of religion and expression squared off against the dignity of a minority group (i.e., gays and lesbians), who in recent years not only won the constitutional right to marry, but the statutory right to be served equally under long-standing public-accommodations laws, which many states have extended to protect them in the public square.

I say the Supreme Court acted ahead of schedule because virtually no one was expecting the justices, let alone the unofficially designated chief decider in the case, Justice Anthony Kennedy, to make up their minds in this matter without waiting until the very last day of the term in late June, as they often do in hotly contested cases. When the high court heard Masterpiece back in December, there was little doubt that this would be one of those nail-bitingly close rulings, with Kennedy wavering and his colleagues prodding him to stop agonizing and make up his mind already and break a 4–4 tie.

And make up his mind he did, but not in the way you might expect. Somehow, a grand total of seven justices — including the more liberal Justice Stephen Breyer and Justice Elena Kagan — agreed that Jack Phillips, the religious baker at the center of Masterpiece, should win the case. And that the gay couple that was turned away from Phillips’s bakery, Charlie Craig and David Mullins, should lose. And yet this simplistic, win-lose dynamic — which simplistic minds are already grossly abusing for partisan ends — obscures what Kennedy and his co-signers really did here: rule very narrowly in a case that could’ve created a major free-speech or religious exception to long-settled anti-discrimination principles that have been with us since the civil-rights era.

The Supreme Court did none of that. And neither did it even rule on a point of law that Phillips really wanted the justices to adopt: that his cake “artistry” is protected by the First Amendment’s free-speech clause. “The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech,” Kennedy muses rather aimlessly, as his opinion doesn’t even try to engage that difficulty. The court really wrestled during oral arguments with which wedding-related products and services count as speech and which ones don’t — Is cake protected expression but a bride’s makeup and hairstyling aren’t? And what about photography, lighting, and the like? — but here, rather than entertaining an impossible, line-drawing exercise implicating thousands of counterfactuals, Kennedy took the path of least resistance and punted on the complexities of the dispute.

Instead, relegating everything to “some future controversy involving facts similar to these,” his majority went on to hold that the Colorado civil-rights commission that sanctioned Phillips for refusing to sell a wedding cake to Craig and Mullins acted unconstitutionally because it wasn’t religiously neutral — that is, the agency exhibited an apparent bias toward the baker’s religious objection to doing business with a gay couple. “The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” Kennedy wrote. “Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”

In other words, Kennedy, more than anything, wanted to send a message to lower-court judges and quasi-judicial arbiters deciding these thorny matters at the intersection of equal rights for all and exemptions to generally applicable laws: Be considerate to all sides and claims, or else your decrees will be deemed unconstitutional. “The official expressions of hostility to religion in some of the commissioners’ comments — comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order — were inconsistent with what the Free Exercise Clause requires,” Kennedy wrote. (During a public meeting, one commissioner had noted that it’s “one of the most despicable pieces of rhetoric” to rely on “religion to hurt others.” Kennedy seemed seriously offended by this during oral arguments.)

But Kennedy went no farther. If anything, in more than one spot, he paid homage to his gay-rights heritage — he’s the author of the big four landmark cases enshrining protections for LGBT people — by referring loftily to the worth and respect gay people are owed. More salient still, the Supreme Court made sure to reaffirm historic precedents going back decades in which the justices summarily rejected religious defenses to laws that otherwise bind all shop owners with businesses open to the public. Sure, some may have “religious and philosophical objections,” Kennedy wrote, but it is equally true that as a “general rule … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

That’s a big deal, if only because it seems to foreclose the possibility that the First Amendment’s speech and religion clauses provide a blanket shield to discriminate, which in turn would’ve meant open season for all sorts of businesses that aren’t keen on celebrating Pride month. Justice Elena Kagan, writing separately, confirms this reading — which may explain why she was willing to join it despite the deceptive optics of a ruling against a same-sex couple: “As this Court has long held, and reaffirms today,” she writes in a footnote addressed to Justice Neil Gorsuch, “a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait.” She suggests that Phillips, under Colorado law, may yet lose again, so long as the administrative body that relitigates the case doesn’t act with improper religious bias.

Gorsuch, who, like Kagan, also joined Kennedy’s majority in full, wrote a lengthy opinion to bang on the drum of religious neutrality among government actors — and to remind Colorado that it can’t pick and choose about which bakers may skirt legal requirements in serving customers and which bakers may not. His opinion reads largely as a response to Kagan and Justice Ruth Bader Ginsburg, who wrote the dissent, and all but pushes for a swift resolution that spares the baker further legal troubles. “Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment,” Gorsuch wrote.

(In his own lengthy concurrence, Justice Clarence Thomas, joined by Gorsuch, would’ve gone ahead and decided the free-speech question Phillips had pressed. Citing his own prior views in gay-rights cases, he warned that Obergefell v. Hodges, the Kennedy-led decision that legalized same-sex marriage, shouldn’t be wielded as a weapon “to stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”)

Only Ginsburg and Justice Sonia Sotomayor, the Supreme Court’s staunchest liberal voices, dissented from everyone else. But their disagreement was only partial: They in fact agree that Colorado has every right to extend protections to gay people seeking equal treatment in public accommodations, and that religion alone isn’t a strong enough interest to override that policy choice. “Gay persons may be spared from indignities when they seek goods and services in an open market,” Ginsburg writes, quoting word for word from Kennedy’s opinion.

Where she and Sotomayor part ways with the rest, however, is in the conclusion that isolated comments by two stray commissioners somehow rendered the ruling against Phillips null and void. After all, the Colorado civil rights commission wasn’t the only decision-maker in the case; rather, the dispute moved through “layers” of proceedings at the state level that also included an intake division, an administrative law judge, and an appeals court — none of which displayed any apparent religious animosity in their own consideration of Phillips’s claims. “Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins,” Ginsburg writes.

All told, Masterpiece Cakeshop is nowhere near the watershed ruling that many were hoping for or fearing. Ted Cruz and other opportunists may wildly misrepresent the decision and use it to score cheap political points, but the reality is far subtler and significant: There’s no such thing as an exemption, on either religious or free-speech grounds, to civil rights laws that “purveyors of goods,” as the Supreme Court puts it, are bound to follow. In upholding that age-old principle, at least for now, Kennedy managed to safeguard his own gay-rights legacy while giving some consideration to his well-known respect for matters of faith. In a very real sense, he managed to have his cake and eat it, too.

Supreme Court Has Its Cake, Eats It Too, in Gay Wedding Case