In July of 2012, Charlie Craig and David Mullins, a same-sex couple, entered Masterpiece Cakeshop in Colorado to order a wedding cake. Jack Phillips, the owner, explained that he could not design their cake. Due to his Christian beliefs, he felt his work shouldn’t support same-sex marriage. The couple left and found their wedding cake elsewhere.
Craig and Mullins sued Masterpiece Cakeshop under Colorado’s Anti-Discrimination Act, which prohibits businesses from discriminating based on sexual-orientation. Phillips countered, arguing the law violated First Amendment rights of free expression and exercise of religion.
The case has serious implications for civil rights of same-sex couples, and for religious expression and exercise in the public sphere. And the decision? It comes down to one man: Justice Anthony Kennedy.
Justice Anthony Kennedy of the Supreme Court of the United States will likely serve as the deciding, swing vote for the Masterpiece Cakeshop vs. Colorado Civil Rights Commision case. For controversial social cases, Justice Kennedy usually finds himself in this key position.
One article from the National Review, a conservative-leaning publication, wrote, “I’ve started to think that Supreme Court Justice Anthony Kennedy may be the one man preventing the United States from political breakdown.” According, to Michele Jawando, a civil rights advocate, “Justice Kennedy is one of the last things standing between progressive values rooted in the Constitution and the wrecking ball that is this erratic administration.”
How is it that both liberals and conservatives deem Justice Kennedy as necessary for their respective causes? Although many liberals call Justice Kennedy a conservative, he’s actually libertarian. On economic issues, he tends to vote in a traditionally conservative way, but on social issues he tends to vote in a more liberally-minded way.
On social issues, Justice Kennedy’s vote has been a significant force for individual rights, ruling in favor of abortion laws and L.G.B.T. rights. His swing vote proved crucial in the 5-4 decision of Obergefell vs. Hodges, which legalized same-sex marriage. He even wrote the majority opinion for that landmark case.
If Justice Kennedy is the swing vote for the social issue case Masterpiece Cakeshop vs. Colorado Civil Rights Commission, doesn’t that mean that Colorado has already won? Not necessarily.
Jack Phillips posed this question to the Supreme Court: “whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech [and] Free Exercise clauses of the First Amendment.”
First: free speech. Phillips argued that using artistic talent to create the cake violated his free speech rights. Shockingly, during oral arguments, Justice Kennedy stated he wasn’t interested in free speech arguments. His point was that if baking a cake is expressive conduct, it undermines civil rights laws. If businesses do not have to serve individuals on the basis of sexual orientation, the law would also justify not serving people on the basis of race, or gender. It would apply to not only bakers, but many other types of artisans. Kennedy expressed worry that ruling in favor of Masterpiece Cakeshop on free speech would result in a boycott to same-sex weddings. On free speech grounds, Masterpiece Cakeshop is going to lose.
However, on the issue of free exercise, Justice Kennedy’s opinion isn’t readily apparent.
In 1990, Justice Kennedy joined the majority opinion in the controversial free exercise case Employment Division v. Smith. Two Native Americans were fired from their jobs at a drug rehabilitation center and denied unemployment benefits for ingesting peyote, which they did for religious reasons. The Supreme Court ruled that because laws against smoking peyote are neutral (meaning that the law is not intentionally discriminatory against a specific group), and is generally applicable to everyone for the public good, the free exercise clause doesn’t justify religious groups to break that law.
And yet, in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, another free exercise case, Justice Kennedy came to a different conclusion. In Florida, the newly founded Church of Lukumi Babalu Aye was practicing animal sacrifice. In response, the city of Hialeah outlawed animal sacrifice. The Supreme Court ruled unanimously that Florida law was discriminatory towards the Church. Kennedy wrote the majority opinion that the Florida law violated the free exercise clause of the Constitution.
Essentially, the outcome of the case comes down to one question: will Justice Kennedy rule that Colorado’s anti-discrimination act and/or legislative actions are neutral (like the peyote case) or discriminatory (like the animal sacrifice case)? Maybe it doesn’t seem like wedding cakes, smoking peyote, and animal sacrifice have much in common. But, all three represent potential outcomes for free exercise in America. The ruling for Masterpiece Cakeshop is up in the air, dependent Justice Anthony Kennedy.
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