the law

Anthony Kennedy Has a Lot of Thinking to Do

The scene. Photo: SAUL LOEB/AFP/Getty Images

Justice Anthony Kennedy is not really good at playing devil’s advocate. When he says something in open court, he means it — in a way that doesn’t make it difficult to discern his actual views about a contested legal issue. And on Tuesday, during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Kennedy felt the need to put it on the record that respect for religion matters in these great United States. “Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy declared during a crucial moment of the hearing in the case, the most high-profile the Supreme Court has considered thus far this term.

His darts were aimed at the state of Colorado — namely, its civil-rights commission, which determined that Jack Phillips, the religious owner of a bakery that turned away a gay couple wishing to purchase a custom wedding cake, was in violation of the state’s anti-discrimination laws. Kennedy stressed that the commission was “neither tolerant nor respectful of Mr. Phillips’s religious beliefs,” which teach him that compelling him to create a custom-made cake for a gay couple would violate his religious views privileging heterosexual marriage, to say nothing of his First Amendment right to free speech.

Indeed, during the earlier proceedings, one Colorado commissioner had observed how, throughout history, religious freedom had been wielded as a justification for all kinds of hateful discrimination, up to and including slavery and the Holocaust. To this commissioner, claiming religion as a defense was “one of the most despicable pieces of rhetoric that people can use … to use their religion to hurt others.”

Kennedy was none too pleased by this characterization, and neither were some of his more conservative colleagues — such as Justice Samuel Alito, who noted that this was a “disturbing” fact about the case that may show a certain animosity by Colorado officials toward Phillips’s faith. At one point, Kennedy pressed the Colorado lawyer, Frederick Yarger, on whether he disavowed these comments, and Yarger had no choice but to relent and concede that the rogue commissioner may have gone too far: “I would not have counseled my client to make that statement,” Yarger said.

But Kennedy wasn’t ready to let this go, and later seemed troubled by how Colorado had chosen to sanction Phillips: by ordering him to provide a training course to his employees on the requirements of Colorado’s public-accommodations law, which prohibits discrimination on the basis of LGBTQ status. This, Kennedy said, made it seem as if the Colorado law not only overrides Phillips’s religious beliefs, but also forces him to speak a particular message to his workers. “Part of that speech is that state law, in this case, supersedes our religious beliefs, and he has to teach that to his family. He has to speak about that to his family,” Kennedy said. This drew a rejoinder from Justice Ruth Bader Ginsburg, who jumped in to save Yarger by pointing out that Colorado law doesn’t require Phillips to teach anything, much less to change his religious views. “I mean, his belief is his belief,” Ginsburg said. “All he has to instruct them is, ‘This is what the law of Colorado requires.’”

As with every other culture war in the modern American playbook, the final outcome in Masterpiece Cakeshop will come down to Kennedy, and where he comes down on the clash between religion and anti-discrimination laws that apply to every business owner equally. This is the quintessential, unnervingly close Kennedy case, in large part because it appeals to every one of his sensibilities: his Catholic upbringing, his expansive views on liberty and free speech, his distrust of government, and his desire to cultivate a historic legacy on gay rights. There’s so much packed into the controversy, including the fate of every public-accommodations statute in the nation, that it wouldn’t be a surprise if Kennedy hasn’t yet made up his mind about it.

As I heard his interventions during the Masterpiece argument, I wondered if he may have forgotten, if only for a moment, that two decades ago it was his views in another Colorado caseRomer v. Evans, a key stepping stone in overturning state sodomy laws — that set in motion his march toward recognizing the dignity of gays and lesbians as a matter of constitutional law for years to come. This march would culminate with 2015’s Obergefell v. Hodges, which established that same-sex couples have a legal right to marry. But the landmark case also cleared all doubt that Kennedy’s title as the gay-rights hero on the Supreme Court was his alone. Did he ever imagine he’d be asked to put on the balance his own jurisprudence against other views he holds dear?

The Trump administration — which also jumped into the case, because there isn’t a religion case it doesn’t like — doesn’t much care about all these competing interests. Noel Francisco, the Department of Justice’s top Supreme Court lawyer, insisted that Phillips’s predicament is confined to a “narrow category of services that do cross the threshold into protected speech.” But Kennedy, again displaying how difficult the case is for him, then asked him: “If you prevail, could the baker put a sign in his window: ‘We do not bake cakes for gay weddings’?” When Francisco responded that Phillips could preempt future problems with a sign that he won’t serve “custom-made” cakes, Kennedy retorted: “And you would not think that an affront to the gay community?”

In the end, all the Supreme Court needs to settle on is a bright-line test that will make sense for the nation. But maybe that test doesn’t exist. In a moment of clarity, Justice Elena Kagan illustrated how bizarrely layered the case is. As she noted, there’s the line of what counts as speech and what doesn’t; does a baker express something through baked goods which a chef would not through haute cuisine? There’s also the question of what kinds of discrimination that strict line-drawing might create — as well as the potential to allow discrimination on the basis of sexuality, but not on the basis of race. And yet there’s also the question of whether Masterpiece Cakeshop is just about weddings. What about funerals or bar mitzvahs? Might religion be raised as a shield against serving customers in these settings?

Back in the 1960s, when the Supreme Court was first presented with a religious defense to the newly passed Civil Rights Act of 1964, a unanimous court didn’t even bother with the claim that the First Amendment could provide an escape hatch for a white restaurant owner who didn’t want to serve African-Americans. Neither did it bother with claims that religion forbade interracial marriages. That the court ruled decisively in those cases amounted to a recognition that, when all is said and done, it’s better for courts to err on the side of equality for all than on religious exemptions that may, in time, end up swallowing the rule.

Or as Justice Sonia Sotomayor put it on Tuesday: “If you choose to participate in our community in a public way … you can choose to sell cakes or not. You can choose to sell cupcakes or not. Whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.” Here’s hoping Kennedy’s soul is not torn over such a simple proposition.

Anthony Kennedy Has a Lot of Thinking to Do