Justice Anthony Kennedy’s legacy is arguably tied to advancing LGBTQ rights, given his historic decision in 2015 recognizing marriage equality. But his majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission on Monday did plenty to call that legacy into question.
The U.S. Supreme Court ruled 7 to 2 in favor of the baker, Jack Phillips—kind of. Instead of ruling that Phillips had a First Amendment right to deny a same-sex couple a wedding cake, the Court punted and instead decided that the State of Colorado had showed hostility to Phillips during its handling of the couple’s complaint against him. Because of that hostility, the Court overturned the finding that Phillips had violated Colorado’s anti-discrimination law.
So first, the good news.
Monday’s decision isn’t the broad gutting of anti-discrimination laws many, including myself, feared it could be. Nor did the decision craft a gigantic shield evangelicals could use to further discriminate when selling cakes, flowers, or just about any commercial product you can imagine. It applies only to the baker, and the proceedings, in this case.
Roe is gone. The chaos is just beginning.
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The Court did not hold that religious rights can trump the civil rights of LGBTQ people across the board, and it reaffirmed as a basic legal principle the dignity rights of LGBTQ people. It didn’t rule that baking a cake is speech and therefore can be protected by the First Amendment. These are all very, very important points.
On the other hand: By refusing to answer whether, and to what extent, religious beliefs can be invoked to avoid complying with civil rights laws, Kennedy’s majority decision leaves that question to a future, and likely more conservative, Supreme Court to answer.
And that makes Monday’s decision bad news for everyone but evangelicals, including Justice Kennedy and his jurisprudential legacy.
The basic facts of the case are these: In July 2012, Charlie Craig and David Mullins asked Phillips, the owner of Denver-area bakery Masterpiece Cakeshop, to create a cake for their wedding. Phillips, who describes himself as a “cake artist,” declined and turned the couple away, telling them he had a religious objection to same-sex marriage and therefore could not sell them a cake. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission claiming Phillips had violated Colorado’s anti-discrimination law, which bans discrimination based on sexual orientation in public commerce. Phillips, in turn, argued that the law violated his First Amendment free speech and free exercise rights.
The Colorado Civil Rights Commission investigated the complaint and found Phillips had run afoul of the law when he turned away the couple. Phillips appealed to the Colorado Court of Appeals, which upheld the commission’s finding. Phillips then appealed to the Colorado Supreme Court. That court refused to take the case, leaving the appeals court ruling in place. Phillips then stopped making cakes and appealed to the Roberts Court. After conferencing on Phillips’ request to take the case 19 times, the Court agreed to do so last summer.
“The case presents difficult questions as to the proper reconciliation of at least two principles,” Kennedy wrote. “The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.”
That opening salvo suggests the forthcoming opinion will be a big one tackling those “difficult questions.” It is not.
Instead, Kennedy and the other justices joining him—including Justices Elena Kagan and Stephen Breyer—pivot to what had previously been a relatively minor point in the prior proceedings to determine Colorado mishandled the case from the get-go. Therefore, they said, the state’s determination that Phillips violated the law should be overturned.
“Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside,” the majority hold.
From there, the majority goes on to deride the Colorado Civil Rights Commission for bias against Phillips based largely on the comments of one commissioner from the state’s determination.
Those comments are as follows: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
Kennedy and the other justices took great umbrage at these comments. In fact, as Justice Ruth Bader Ginsburg noted in her dissent joined by Justice Sonia Sotomayor, the majority was willing to overlook all the other evidence in the record in order to muster outrage on behalf of the baker rather than the couple who faced the humiliating reality of being turned away for being gay.
“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 wrote.
So where does Monday’s decision leave us?
Craig and Mullins have vowed to press on with their claims, though it is unclear where exactly they might refile. “Today’s decision means our fight against discrimination and unfair treatment will continue,” the couple said in a joint statement following the opinion.
And because the decision applies only to Phillips and this case, it means that state-level nondiscrimination laws still protect LGBTQ people.
But without a definitive ruling from the Court condemning Phillip’s actions, it also means LGBTQ people will continue to have to navigate a patchwork of legal protections that often fails to recognize their fundamental humanity. It also likely means that those who want to deny that humanity by denying goods and services will continue to do so, as they search for the proverbial bright line demarcating their beliefs from their legal obligations. Because if we’ve seen one thing post-Obergefell v. Hodges, it is that conservatives will not rest until they succeed in rolling back LGBTQ autonomy. Justice Kennedy’s decision Monday gave them the green light to keep trying.
So when this question arises again, a future Court will be the one to decide its answer. That Court may not contain a conservative like Kennedy, who is at least willing to consider the fundamental humanity of LGBTQ people. And that puts not just Kennedy’s legacy, but the rights of all LGBTQ people, at risk.