Some decisions by the Supreme Court you just know are good or bad from who wrote them. If a church state opinion is authored by Justice Ginsburg, I know I am going to be OK with it. And, up to now, if an opinion touching on LGBT rights was written by Justice Kennedy, everything was going to be OK. After all, it was the devout Catholic Associate Justice who gave us Romer, finding that states couldn’t exclude gay people from protections because they didn’t like them; and Lawrence, saying that states couldn’t criminalize same sex physical intimacy; and Windsor, striking down part of the Defense of Marriage Act as unconstitutional; and, of course, Obergefell, mandating same sex marriages across the country. If one Justice has an indisputable legacy, it’s Kennedy’s expansion of LGBT rights.
So, Tony, what the HELL happened with Masterpiece Cakeshop?
On the surface, Kennedy’s proud legacy lies in tatters. If you believe the triumphalist crowing of the religious right, the Supreme Court has carved out an exemption to anti-discrimination laws for religious business owners to refuse to serve LGBT individuals. And indeed, they did rule that Jack Phillips, owner of Masterpiece Cakeshop was unfairly punished when he refused to design and bake a cake for the wedding of Charlie Craig and Dave Mullins.
But this preening and posturing by groups like the Alliance Defending Freedom has no basis in the reality of the decision. Don’t get me wrong – this is a bad, bad decision by the Supreme Court. But it could have been worse, and it’s bad for reasons that aren’t being widely reported on in the media. First things first. This decision does not create a religious exemption to anti-discrimination laws. Indeed, the Court’s position on that was that which CFI argued in its amicus brief. Both Kennedy’s majority opinion, and Justice Kagan’s concurrence, are clear that states have the right to pass laws protecting LGBT people from discrimination in public accommodations, and there is no automatic Get Out Of Jail Free card based on religious belief. The concurrences signed by Justices Thomas, Gorsuch, and Alito, on the other hand, would do just that. But fortunately they aren’t the opinion of the Court (more on this later).
So what happened? Kennedy, and to a lesser extent Kagan and Breyer, found animus against religion in how Colorado applied its laws.They didn’t assert that the laws protecting LGBT individuals themselves were unconstitutional, and they didn’t even say that Phillips was entitled to refuse to obey them because of his religious views. Instead they found that the application of the law showed animus towards religion, and so could not stand.
This, then, is an incredibly fact specific opinion. It was based on Colorado’s finding that bakers who refused to make cakes carrying anti-gay bible verses were permitted to do so, but Phillips was not permitted to refuse to make a cake for a same sex couple’s wedding. There’s no other way of explaining this but to say the Court dropped the ball badly here. As Justice Ginsburg explains in her (as ever) eloquent and fiery dissent, the two situations are easily distinguished. Phillips refused to make a cake for customers because they were gay. This is illegal in Colorado. The other bakers refused to make a cake for customers because they found the design of the cake offensive. This is permitted in Colorado. Whoever asked for that cake design would have been refused; with Phillips, whatever cake design a gay person requested for their wedding, they as individuals would be refused.
Kennedy also focused on language from one of the commissioners, who stated:
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.
The Kennedy, as well as to the religious right community generally, these words showed intolerance and contempt for religion. Even ignoring, though, as Kennedy did, that the commissioner added to the end that this was only their opinion, this language in no way shows animus towards religion. Instead, it represents a view held by many, if not most, Americans, including large swathes of those who think of themselves as religious. All it says is that religion shouldn’t be used to harm others.
Based on this imagined sleight to religion, a sleight which, even if it was real, would have been corrected by the de novo review of the Colorado Court of Appeals, a body which stands unaccused of anti-religious bias here, Kennedy and the majority of the Supreme Court chose to find that Phillips did not receive a fair hearing when he denied service to two gay men based on their sexual orientation.
The specific factual nature of this case, combined with the clear statements that religion does not provide an automatic exemption to anti-discrimination law limit the harm this decision will have. But what this decision does is create uncertainty for the court system. Previously, the bar for animus towards religion was set high, and rightly so. In Church of the Lukumi Babalu Aye v. City of Hialeah, the Court found a local ordinance banning animal sacrifice showed unacceptable animus towards religion. But this was a law passed in emergency session to precede the founding of the church, which was enforced only against that particular church, which legislators and city lawyers admitted was aimed at that church, and which exempted almost all other forms of animal sacrifice and slaughter practiced by others from its coverage. That was what the Court ruled was animus to religion. Now, the Court has found an ambiguous phrase, and a factually distinguishable decision as reaching that level.
So the decision is bad, and the future is murky. But the sky hasn’t fallen. Yet. What’s terrifying is that without Justice Kennedy, rumored to be retiring in the near future, and Justice Ginsburg, 85 years young, the theocratic leanings of Justices Alito, Thomas, and Gorsuch would form the majority view of the Court. If similar justices are added to replace those who retire, the entire future of church state separation law is bleak indeed.