Those of us who were afraid that the U.S. Supreme Court would use the Masterpiece Cakeshop case to issue a license to discriminate against gay people in the name of religion breathed a sigh of relief on June 4. The court’s insistence that the dignity and equality of gay individuals “must be given great weight and respect by the courts” made clear that no such general license will be forthcoming as long as the majority opinion’s author, Justice Anthony M. Kennedy, remains on the bench.
“As long as” is an important qualification; the retirement intentions of Justice Kennedy, who turns 82 next month and is the court’s longest-serving current member, are the subject of increasingly frantic speculation.
I’d like to offer an additional qualification, one that hasn’t received sufficient attention amid all the parsing of the court’s odd and unexpected 7-to-2 decision. My concern is with the implications of the court’s unfounded conclusion that Colorado officials expressed such deep “hostility” to religion as to have inflicted an injury of constitutional dimension on a baker who claimed that his religious view against same-sex marriage prevented him from making a celebratory cake for a gay couple.
As many have noted, the path the court took toward ruling for the baker clearly reflected a compromise among justices with very different views. The court dealt with the profound issues of free expression and freedom of religion that the case seemed to present (whether it really presented them is a separate question) by avoiding them; as Prof. Michael Dorf of Cornell Law School wrote of the opinion, “At best, it is a masterpiece of ducking the hard questions.”
So it was the search for an off-ramp that led the court to its obsessive focus on statements about religion made by two of the seven members of the Colorado Civil Rights Commission at two hearings in 2014 on the gay couple’s discrimination complaint against the baker. (Colorado law prohibits discrimination on the basis of sexual orientation by “public accommodations,” a category that includes most businesses.) At the first hearing, a commissioner observed that “if a businessman wants to do business in the state and he’s got an issue with the law’s impacting his personal belief system, he needs to look at being able to compromise.” At the second, a commissioner observed that religion “has been used to justify all kinds of discrimination throughout history” and proceeded to label religion “one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”
Following these hearings, the commission found that the baker’s refusal to serve his customers was an act of discrimination that violated state law. That decision was upheld by the Colorado Court of Appeals which, Justice Kennedy noted with disapproval, “did not mention those comments, much less express concern with their content.” Neither, he added, did the state itself disavow the comments in its presentation to the Supreme Court — a point Justice Kennedy had made when the case was argued six months ago. “For these reasons, the court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the commission’s adjudication,” Justice Kennedy wrote, adding the commission “was neither tolerant nor respectful” of the baker’s religious beliefs. This “hostility” toward religion, the court held, violated the baker’s First Amendment right to the free exercise of religion.
As the only two dissenters, Justices Ruth Bader Ginsburg and Sonia Sotomayor, pointed out, this conclusion is illogical at best, based on how the case proceeded through the Colorado legal system. Not only were the statements made by just two of seven members of the Civil Rights Commission, but the commission was just one of four “decision-making entities,” including another state commission and an administrative law judge, that passed judgment on the case. In other words, even if the statements could be understood to signify that the speakers were hostile to religion — a highly dubious conclusion at least with respect to the first statement, which simply expressed the current state of free exercise law — there is no basis for discerning the pervasive hostility the court claimed to find and on which it based its decision.
My fear is that the Supreme Court has imposed a regime of constitutional political correctness on how we talk about religion. There is a striking contrast between the exquisite sensitivity for religious feelings that Justice Kennedy displayed on June 4 and his casual rejection only four years ago of the notion that unwanted exposure to religious speech could be so offensive to nonbelievers as to violate their constitutional rights. I’m referring to Town of Greece vs. Galloway, a 2014 decision on whether the overtly Christian prayers with which an upstate New York town opened its monthly town board meetings violated the First Amendment’s Establishment Clause.
The case was brought by two non-Christians who complained that they were effectively forced to listen to the prayers when they showed up to conduct business before the board. While acknowledging that the prayers made the two plaintiffs “feel excluded and disrespected,” Justice Kennedy wrote for the 5-to-4 majority that “adults often encounter speech they find disagreeable, and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.”
Does it matter? I’d like to think that government officials will be free to push back against the kind of religious exceptionalism that the claim at the heart of Masterpiece Cakeshop exemplifies. There will be many more Masterpiece Cakeshops, and this decision is more of a beginning than an ending.
Nonetheless, the religious right didn’t get what it wanted from this case, and we have Justice Kennedy to thank for that. He found a way for two gay men to lose a case without setting back the cause of gay equality for which he has earned his place in history. And it’s worth pointing out something that Justice Kennedy certainly knows but that’s not obvious from the opinion: Although this case happened to be about a religious objection to same-sex marriage, religious conservatives are actually after bigger game.
Their goal is to persuade the court to overturn the 1990 decision that established the current boundaries of the Free Exercise Clause — as accurately, if artlessly stated by one of the Colorado commissioners. That decision, Employment Division vs. Smith, held that as a general matter there is no religious exemption from neutral laws of general applicability.
Twenty-eight years later, anger over that decision remains fresh, mitigated only slightly by the Religious Freedom Restoration Act, signed into law by President Bill Clinton, which offers a workaround for the federal government but has been held not to apply to the states. Some on the religious right sense that their moment may be approaching. Spurred by the Trump administration, the push for exemptions from laws that apply to everyone is more forceful than ever.
What has changed during the intervening generation is not law so much as political culture — and the court itself. The author of the majority opinion in Employment Division vs. Smith was Justice Antonin Scalia. His replacement, Justice Neil Gorsuch, wrote a separate concurring opinion on Monday that began with the opaque and gratuitous observation that “Smith remains controversial in many quarters.” Another member of the Smith majority was Justice Kennedy. And for now, Justice Kennedy is still there. At the risk of sounding religious, I’ll say thank Heaven for that.
© 2018 The New York Times
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