Justice Kennedy Departs With an Ethical Teaching

On June 4, 2018, the U.S. Supreme Court handed down its 7-2 decision in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, which pitted a Colorado state law prohibiting discrimination based on sexual orientation by places of public accommodation against the refusal of baker Jack Phillips to create a wedding cake for a same-sex couple based on his religious beliefs. Phillips asserted that it was a violation of his religious freedom and free speech rights to compel him “to exercise his artistic talents” to express a message with which he disagreed. The Colorado Civil Rights Commission, and then an Administrative Law Judge and the Colorado Court of Appeals, rejected Phillips’ claims.

As discussed more fully below, the high court left for another day the decision as to how best balance this, in its words, “difficult to resolve” conflict of rights. Instead, the Court reversed the judgment against the baker based on its finding that Phillips had not received a fair hearing; the high court pointed to, among other things, derogatory remarks made by two of the commissioners about Phillips’ religion and about religion in general. But, even as the justices ruled based on facts peculiar to the case, the author of the Court’s opinion, Associate Justice Anthony Kennedy, rendered a mighty gift — he provided an ethical teaching that, even as we, as a society, are going to disagree on some extremely important matters, issues on which passions run high, we must do so in a fashion based on tolerance, respect and the understanding that all sides deserve dignity.

In his opinion, Justice Kennedy first reminded us, “Our society has come to the recognition that gay persons cannot be treated as social outcasts or as inferior in dignity and worth.” That our society has now come to this recognition — one that is long overdue and yet came to fruition with remarkable speed — is due not only to the advocacy of committed activists but also because of the pivotal role of Justice Kennedy himself, who authored all the earlier high court opinions vindicating LGBTQ rights, culminating in the Court’s 2015 5-4 decision in Obergefell v. Hodges, which held that same-sex couples have a constitutional right to marry on the same terms as heterosexual couples.

Indeed, it was not so many years ago that it was controversial to assert that discrimination based on sexual orientation was comparable to such other invidious grounds of discrimination as race, national origin, religion and sex — to say nothing of marriage equality. Current Gallup polls show that 67 percent of Americans support same-sex marriage, with only 31 percent opposed, as contrasted to 1996, when 68 percent of Americans opposed same-sex marriage, with only 27 percent in support. The significant, although distinctly in the minority, portion of the population that remains opposed to same-sex marriage undoubtedly includes many from religious traditions holding, as Phillips does, that marriage is solely between a man and a woman.

It should be no surprise, then, that cases have been arising regularly in which small businesses, many of which would disclaim any right or desire otherwise to decline to provide goods or services based on sexual orientation, have refused to provide wedding-related services (typically, preparation of floral displays or wedding cakes), claiming that to do so would cause them to engage in expressions about the nature of marriage that run contrary to their religious beliefs. However one believes this type of case should ultimately be resolved, it seems clear that we are dealing with a conflict between two compelling interests — the need to combat invidious discrimination and to protect freedom of religion and free speech rights.

The opinion of the Court, as well as the various concurring and dissenting opinions, provided (sometimes conflicting) tea leaves aplenty as to what tack the Court might take in resolving these conflicts. Justice Kennedy noted that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of public expression,” but also noted that such objections do not generally “allow business owners [of a public accommodation]… to deny protected persons equal access to goods and services.” Further coal was added to the fire by the Court’s broad and controversial holding in NIFLA v. Becerra, decided some three weeks after Masterpiece Cakeshop, that a California statute requiring pro-life pregnancy counselling centers to post notices about, among other things, the availability of abortion services elsewhere was likely an unconstitutional instance of compelled speech.  Of course, the purport of those tea leaves has been made even murkier with Justice Kennedy’s subsequent retirement.

While the principal issues in Masterpiece Cakeshop have been left for another day (and another iteration of the Court), the Court’s decision, as was noted at the outset, sends an important message  that is particularly apposite in this time and age. Already in Obergefell, Justice Kennedy cautioned, in upholding the constitutional right to same-sex marriage, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” The Masterpiece Cakeshop majority found that Phillips had indeed had his beliefs disparaged, as had been the very value of religion, as demonstrated by the remarks of one of the commissioners at the hearing that “[f]reedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust… 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 Court also noted the seemingly inconsistent treatment of separate cases in which the Commission had allowed three bakers to decline creating cakes with derogatory content about LGBTQ people.

The Supreme Court found that Phillips’ religion had been disparaged in two ways, “by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.” Given that neither the other commissioners nor any of the reviewing state bodies made any objection to these comments, and looking to the handling of those other cases, the Court held that the state’s treatment of the case “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” not least because it is not the role of the state to  decide, or even suggest, “whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate.” It was on this basis that the Court invalidated the judgment against Phillips, without reaching the vexing issue of reconciling conflicting rights.

The opinion of the Court closes with this crucial observation: “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

As noted earlier, we have thankfully arrived at a time when the treatment of LGBTQ people as “social outcasts” is regarded as rank injustice and discrimination based on sexual orientation is regarded as contrary to the basic values of our society. It was also long past time for marriage equality to become the law of the land. But, as the Court’s opinion reflects, the arrival of this simple justice should not and must not become a rationale for making social outcasts of another group of people, namely, religious individuals and communities that have a differing view of the nature of marriage.

Some have argued that the Court overreached in finding the comments of the commissioners, even if distasteful, to have been a sufficient basis to reverse the judgment below. Regardless, we have been done a signal favor by the Court’s having drawn attention to an ongoing problem in the national discourse. We have a problem when advocates routinely talk about religion as a “pretext” for discrimination or place the words “religious freedom” in scare quotes, even when there is no evidence that the individual asserting a religious expression claim is insincere. And it is especially problematic for a state authority considering a religious freedom claim to castigate particular religious beliefs, or religion in general, as a force for evil.  It is well to remember that secular ideologies, as well as religious beliefs, have been invoked to carry out some of the greatest crimes in history.

In Jewish thinking, there is a school of thought called Mussar that seeks to convey concrete instructions on how to live a meaningful and ethical life. One providing such instruction is referred to as “giving Mussar.” While Justice Kennedy’s opinion for the Court may not have resolved the compelling questions underlying Masterpiece Cakeshop (there will be other cases in which the tribunal does not stumble so badly), he has, as his parting favor, given powerful Mussar, about the need for each side in these disputes to afford the other side the same dignity it rightly demands for itself.  That is not a bad legacy for any jurist.

Richard Foltin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. His email address is: rfoltin@freedomforum.org.

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