Masterpiece Cakeshop: the Anthony Kennedy Conundrum

Anthony Kennedy

The ‘gay wedding cake case’ (Masterpiece Cakeshop v. Colorado Civil Rights Commission) was finally decided on June 4th, 7-2 in favor of the Christian baker who refused service to a gay couple in 2012. The long-anticipated majority opinion was authored by the Court’s notorious civil libertarian and swing vote, Anthony Kennedy. Only two of the four ‘liberal’ justices of the Court dissented, Ruth Bader Ginsburg and Sonia Sotomayor.

Predictably, the decision seemed to please Republicans and rouse the ire of Democrats. Attorney General Sessions released a statement shortly after hailing the Court’s decision:

“The Supreme Court rightly concluded that the Colorado Civil Rights Commission failed to show tolerance and respect for Mr. Phillips’ religious beliefs. In this case and others, the Department of Justice will continue to vigorously defend the free speech and religious freedom First Amendment rights of all Americans.”

Even President Trump seemed to display some enthusiasm for the Court’s ruling.

Democrats, including the DNC Chair Tom Perez, balked at the decision. Perez released an official statement on the same day the decision was handed down:

“This case was never just about a wedding cake. It was about all people—no matter who they are—having the right to celebrate their love without facing discrimination. The Democratic Party believes that no individual has a license to discriminate. We believe in the dignity of every human being. And we will continue to fight for equality for LGBTQ people in all areas of our society—from housing and health care, to bathrooms and boardrooms, to bakeries and the ballot box.”

But before victory or defeat is declared by partisans and commentators, let’s review Justice Anthony Kennedy’s opinion and the facts of the case.

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In 2012, Jack Phillips, owner of Masterpiece Cakeshop, refused to bake a wedding cake for a same-sex couple based on his religious beliefs. Phillips stated that baking a cake specific to a same-sex wedding would be, in his eyes, participating in a ceremony against the teachings of Jesus Christ. In fact, Phillips offered to bake the couple “birthday cakes, shower cakes” and other general baked goods.

The couple filed for a claim with the Colorado Civil Rights Commission shortly after on the grounds that Phillips’ denial of service constituted discrimination on the basis of sexual orientation, a violation of the Colorado Anti-Discrimination Act (CADA). Kennedy immediately recognizes that the case presents an intricate balancing act between the state’s interest in protecting minority groups from discrimination (in this case, LGBT communities) and the “right of all persons to exercise…the freedom of speech and the free exercise of religion.”

But instead of taking on the challenging Constitutional questions presented and articulating a clear standard for determining to what extent a private individual like Phillips may discriminate for religious reasons, Kennedy simply leaves the core Constitutional questions unanswered. He acknowledges this multiple times in his opinion, reasoning that the requirement of religious neutrality had not been met by the Colorado Civil Rights Commission. Indeed, the commission was so incredibly disdainful that one member compared Phillips’ religious objection to historical justifications for slavery and the Holocaust and ascribed Phillips’ refusal of service to “despicable pieces of rhetoric.”

Clearly, the commission was not impartial or religiously neutral, but this sort of judicial dodging by Kennedy leaves the door wide open to the possibility that the Court in a later decision may permit the state to coerce private individuals and businesses to serve same-sex couples against sincerely held religious convictions.

Kennedy’s language hints at such a future decision by suggesting that private entities have no right to discriminate at all: “it is a general rule that 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.” This kind of judicial thinking ignores the Court’s previous discrimination case law. For instance, in Burton v. Wilmington Parking Authority (1961), the Court concluded that a private business has no right to discriminate on race only when the business and government are intrinsically intertwined. When the two are intertwined, the discrimination is considered action on behalf of the state and thus in violation of the 14th Amendment. The discrimination William Burton faced was declared unconstitutional because the coffee shop which denied him service was operated in a space owned by the publicly authorized and financed Wilmington Parking Authority. In Moose Lodge v. Irvis (1972), the Court refined their position ruling that social clubs in private buildings, even if they receive services from the government such as liquor licenses, are still considered private organizations and have the right to racially discriminate. Note, the Court has long assumed that private entities have the right to discriminate unless there are circumstances that entangle them with the state. Additionally, both these cases involved racial discrimination which receives a higher level of judicial scrutiny than sexual orientation discrimination.

The Court’s sexual orientation discrimination cases are even more damning for Kennedy’s opinion. For example, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), a Boston veterans group was authorized to organize the annual St. Patrick’s Day Parade. The Irish-American GLIB sued the group because Massachusetts law prohibits public accommodations from discriminating on the basis of sexual orientation, just like CADA. Unlike Masterpiece Cakeshop, which Kennedy considered a public accommodation, the veterans group was deemed a private organizer. In a unanimous decision (in which Kennedy participated) the Court ruled that coercing the veterans group to include gays and lesbians would violate the “First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” Notice that the Court implied that the mere association with another group of individuals is speech whereas Kennedy’s opinion seems to have trouble deciding whether a baker’s artistic and confectionary talents are considered speech.

Kennedy also suggests that Phillips’ religious objection deserves more weight because in 2012, Colorado law did not recognize same-sex marriages and the Supreme Court had not issued Obergefell v. Hodges (2013), which essentially legalized same-sex marriages at the federal level. Kennedy suggests that Phillips’ denial of service was somehow more justified simply because the state law and SCOTUS precedent shared his position on same-sex marriage at that time. Once again, this is judicial dodging by Kennedy to avoid answering the real legal issues.

Masterpiece Cakeshop may seem like a win for conservatives and a defeat for liberals but that could not be further from the truth. The decision almost foreshadows a future decision which would compel a Christian baker or florist to participate in a ceremony which he or she would find morally repugnant. In Kennedy’s judicial lens, the public is entitled to the baker’s and the florist’s services and having sincere religious objections for refusing service is only meaningful when policymakers and judges arbitrarily say so.

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