Did Anthony Kennedy tip his hand during oral arguments in a key religious liberty/free speech case today? All eyes were fixed on the perennial swing Supreme Court jurist as attorneys argued in Masterpiece Cakeshop v Colorado Civil Rights Commission, and conservatives had to like Kennedy’s brushback to Colorado’s lawyers early in the hearing. According to the Wall Street Journal’s live blog, Kennedy wanted to know how the state tried to accommodate the baker’s rights to speech and religious expression, and he expressed his dissatisfaction with the response:
A quick headline here: Colorado is having difficulties in defending how it applied its public accommodations law to the baker.
Justice Anthony Kennedy told a lawyer for the state that tolerance is essential in a free society, but it’s important for tolerance to work in both directions. “It seems to me the state has been neither tolerant or respectful” of the baker’s views, he said.
Justice Kennedy, a moderate conservative who has written major rulings in favor of gay rights, was widely believed to be the key vote in this case. His skepticism of Colorado’s position is not good news for the state. Other conservatives justices also are asking tough questions of the state.
Trying to guess votes based on oral arguments is usually a fool’s errand, of course, especially when it’s based on one comment shorn of any other context. Kennedy appears to have given both sides some reason for hope that he’ll fall on their side of a 5-4 decision. He pressed the plaintiff’s attorneys with some tough questions about the purpose of their challenge, and whether or not a victory would erode protection against broader discrimination:
Kennedy, a conservative who sometimes sides with the court’s four liberals in major cases, raised concerns about issuing a ruling siding with the baker that would give a green light to discrimination against gay people.
He mentioned the possibility of a baker putting a sign in his window saying he would not make cakes for gay weddings and wondering if that would be “an affront to the gay community.”
But citing comments made by a commissioner on the state civil rights panel that ruled against the baker, Kennedy said there was evidence of “hostility to religion” and questioned whether that panel’s decision could be allowed to stand.
Kennedy is the whole game here, and everyone knows it. He’s likely in his last year on the court and might have held off on retiring after the last term to help shape his legacy on Obergefell, which contributed to a rash of these discrimination cases against wedding contractors. In his decision on that case, Kennedy argued that those who do not wish to participate in same-sex weddings have no fear of a constitutional right for others to do so, and in a real sense that argument is being tested in Masterpiece Cakeshop:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on thesame terms as accorded to couples of the opposite sex.
Conservatives can take some comfort in Kennedy’s grasp of the inequity of Colorado’s enforcement of the law against Masterpiece’s owner, who clearly didn’t get any “protection” for the exercise of his faith. Kennedy pushed Colorado’s counsel to explain a comment about religion made by the state’s commission about religion, showing hostility to its exercise:
Justice Kennedy is back, raising deep concerns about comments made by one commissioner on the Colorado Civil Rights Commission who said it was “one of the most despicable pieces of rhetoric” for people to use their religion to hurt others. The justice makes clear he’s troubled by the statement and asks if the state disavows it.
Mr. Yarger said he wouldn’t counsel a client to make a statement like that. Pressed further by Justice Kennedy, he then says, yes, he disavows it.
Meanwhile, Stephen Breyer was hoping for a compromise rather than a precedent-setting decision. Yarger declined, saying none was possible:
Justice Breyer observed that there are exceptions to civil rights laws, usually make some sort of compromise to people with dissenting views. While that largely was a legislature’s job, not that of the courts, he asked Fred Yarger, the Colorado solicitor general, if there was a way to find a compromise. “I can’t think of a way to do that,” Justice Breyer told Mr. Yarger, but maybe you can. Mr. Yarger stressed that the Colorado Legislature, which exempted houses of worship from the antidiscrimination act, already had weighed the question.
The ACLU isn’t interested in compromise either. Although their attorney told the court that they “don’t doubt the sincerity of Mr. Phillips’ convictions,” they insist it has no bearing on his operation in the marketplace. A refusal to participate in same-sex weddings would “relegate gay and lesbian people to second-class status,” the ACLU attorney argued, but didn’t have a good answer for the implications on the baker forced into participating in the ceremony. Kennedy — again — asked what the limits of that might be. What happens when a custom creation requires the presence of the baker at the event to prevent its damage? The ACLU acknowledged that the more service required, the more speech rights become implicated.
Curiously, the issue of compelled speech doesn’t appear to be getting much attention during the oral arguments, but Randy Barnett thinks it should be the overriding concern:
Some say the much-anticipated Masterpiece Cakeshop case is about religious freedom. But Professor @RandyEBarnett says “compelled speech” may take the cake at #SCOTUS arguments. #Legalese #MasterpieceCakeshop pic.twitter.com/5RLIrGwOBH
— Georgetown Law (@GeorgetownLaw) December 4, 2017
Barnett warns that Masterpiece Cakeshop will not be an easy case to decide, but that it should be simple to discern a boundary between normal accommodation access and specialized services like wedding photography and custom cake designs for events that offend the religious beliefs of the vendor. We’ll see if the Supreme Court can wisely choose a path that provides liberty to all sides in a free market.
Later today, I’ll speak with ADF counsel Jeremy Tedesco on The Ed Morrissey Show to discuss today’s oral arguments and the Masterpiece Cakeshop case in general. Be sure to tune in!