Actually, Kennedy's Masterpiece Cakeshop opinion doesn't conflict with his gay rights legacy

By Harry Litman

June 5, 2018 3 AM PT

Something looks awry about the Supreme Court’s 7-2 decision in one of the most closely watched cases of the term, Masterpiece Cakeshop vs. Colorado Civil Rights Commission.

The court, in an opinion authored by Justice Anthony M. Kennedy, reversed a Colorado decision that compelled a baker to make custom cakes for same-sex marriages. Kennedy’s opinion might be read as a victory for those who object to gay unions.

Wait a minute. Can this be the same Justice Kennedy who has made a lasting legacy for himself with rulings recognizing the rights of same-sex partners in a series of landmark decisions? Did the avatar of same-sex constitutional protections have a late-career fundamental change of heart?

The answer is no, and in fact Kennedy’s opinion for the court, carefully read, is very much of a piece with his four prior opinions in support of equal treatment for gays and lesbians.

The basics of Masterpiece Cakeshop are these: Lakewood, Colo., baker Jack Phillips protested that being forced to create a cake for a same-sex wedding would violate the 1st Amendment in two ways: It would transgress his right of free expression because it would carry an artistic message with which he disagreed, and it would violate the free exercise of religion because he disagreed with the message on religious grounds.

In his opinion, Kennedy calls out the “difficult” and “delicate” question of how to reconcile two apparently competing freedoms: the nondiscrimination principle policed by the Colorado Civil Rights Commission and the freedom of religion and speech claims of the baker.

The high court’s reversal is narrow, procedural, fact-bound. It in no way disparages the constitutional liberties of same-sex couples.

Kennedy’s language makes clear that each side is entitled “to the neutral and respectful consideration.” The flaw in the commission’s decision, and the reason for the reversal, is evidence in the record that the commissioners addressed the claims of the baker with narrow-mindedness and even scorn: A commissioner opined that freedom of religion has been used historically to justify discrimination. “And to me,” he said, “it is one of the most despicable pieces of rhetoric that people can use.”

Kennedy, as well as Justice Elena Kagan in her concurring opinion, focused on this excess to find that the Colorado Civil Rights Commission “was neither tolerant nor respectful of Phillips’ religious beliefs”; it failed to accord “full and fair consideration to his religious beliefs.”

The high court’s reversal is narrow, procedural, fact-bound. It in no way disparages the constitutional liberties of same-sex couples. In fact, the decision’s legal analysis begins with the ringing declaration that “our society has come to a recognition that gay persons and gay couples cannot be treated as social outcasts or inferior in dignity or worth.”

One way of analyzing the court’s approach is that it permitted seven justices with disparate substantive views about free exercise of religion and freedom of expression to come to some sort of conclusion about an exceedingly difficult case.

That’s not inaccurate. But it’s also true that Kennedy’s opinion reads the Constitution as incorporating a principle of fair play and civility. Advocates who fail this test of civic virtue may find that the court won’t even address their substantive concerns.

This ideal of common respect and treatment of warring stakeholders as equals fits well with the rest of Kennedy’s judicial legacy. It forms part of the foundation of his earlier decisions that came down on the side of gay plaintiffs.

There is something of Atticus Finch in Kennedy. He is the son of a small-town lawyer who took over his father’s legal practice before being elevated to the court of appeals at age 39. He has built his constitutional jurisprudence atop a platform of personal decency based on the idea that even the bitterest political disputes can be fought civilly.

Some might find off-putting, even condescending, this sort of civics lessons coming in the form of Supreme Court opinions. The court’s job, after all, is to interpret the law. (One imagines the ghost of Justice Antonin Scalia writing a biting dissent mocking Kennedy’s piety, goading the court to decide the legal issues once and for all and keep its trap shut about civic values and the worth of both sides of the case.)

Yet it’s worth comparing Kennedy’s, and the court’s, decision-making in this case with that of the political sphere in the Trump era. The political branches of government are supposed to work together, debate civilly and arrive at tolerable compromises. They aren’t working that way right now, however.

The Masterpiece Cakeshop decision — consensus-driven, limited, respectful of competing sides — seems the antithesis of the polarizing, slash-and-burn approach of our politics, right down to the fact that the court has done its job of resolving a dispute, while the House and Senate mostly fight bitterly to no end.

Masterpiece Cakeshop vs. Colorado Civil Rights Commission leaves to another day broad constitutional questions, but it resolves the case before it, keeps the peace and points the way forward for compromise among bitter opponents. A fair and characteristic outcome for the “Kennedy court.”

Harry Litman, a former United States attorney and deputy assistant attorney general, teaches constitutional law at UC San Diego. He clerked for Justice Anthony M. Kennedy during the 1988-89 Supreme Court term.

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