Anthony Kennedy legacy again at play in same-sex marriage case
Posted December 5, 2017 4:00 p.m. EST
(CNN) — Supreme Court Justice Anthony Kennedy, poised to cast the deciding vote in a case involving a Christian baker who refused to create a wedding cake for a same-sex couple, wants to preserve the gains of his 2015 decision establishing a right to same-sex marriage.
So even as he voiced sympathy for the baker, Kennedy worried about the possible broader impact of the case.
"If you prevail, could the baker put a sign in his window, 'We do not bake cakes for gay weddings?'" he asked a Trump administration lawyer siding with the baker. Kennedy suggested that would be "an affront to the gay community."
Public perceptions and stigma matter to the justice, who has taken the lead in every gay rights decision since 1996 and who has laced those opinions with references to individual dignity. It seemed evident at the end of a contentious 90-minute argument Tuesday that Kennedy would be looking for a way to avoid a sweeping ruling that allows businesses to refuse services for gay people based on religion.
The 81-year-old justice has signaled that he may retire in the near future. While he has said nothing definite for this term or the next, the Trump administration and many legal analysts are closely watching for any signs related to retirement and to his larger approach to a 30-year legacy, knowing his replacement would certainly be a staunch conservative.
Tuesday's case, which throws into tension principles of religious liberty and anti-discrimination law, is part of a second generation of disputes arising from the milestone ruling two years ago in Obergefell v. Hodges.
That case was narrowly decided by a 5-to-4 vote. The justices found a fundamental right to gay marriage but left open questions about discrimination based on sexual orientation. While Kennedy wrote at the time that religious people would remain free to teach the principles central to their faith, dissenting Chief Justice John Roberts countered that "people of faith can take no comfort" in the ruling.
Roberts on Tuesday revived Kennedy's majority sentiment to make his own case in this new dispute, saying at one point, "When the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about the decent and honorable people who may have opposing views."
In what appears to be a familiar ideological divide between the court's conservatives and liberals, Roberts was among the justices who appeared inclined to favor Jack Phillips, owner of Masterpiece Cakeshop. Phillips contends that an order by the Colorado Civil Rights Commission that he create custom cakes for a same-sex couple infringes his First Amendment rights of speech and the free exercise of religion. He says his work is protected artistic expression.
Justice Elena Kagan was among the left-leaning justices who appeared to endorse the couple, Charlie Craig and David Mullins. She worried that if baker Phillips won, other retailers, jewelers, hair stylists, and makeup artists, could similarly say their work is expressive speech exempt from anti-bias rules.
Where any line would be drawn on gay civil rights has come down to Kennedy. The spotlight on him is even stronger these days because he is at a point in his tenure that he may be especially concerned about how this case affects not only Obergefell but future related controversies.
He scrutinized both sides of Masterpiece Cakeshop v. Colorado Civil Rights Commission, making comments that appeared contradictory at times. "Tolerance is most meaningful when it's mutual," he said. "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs." (Kennedy referred to a disparaging remark regarding religion by one of the commissioners in Phillips' case.)
Yet Kennedy's longstanding concern about animus toward gay people emerged throughout the session. Picking up on his earlier question to US Solicitor General Noel Francisco, Kennedy asked whether, if the Trump administration prevailed in its support for Phillips, a message then would then go out to "bakers all over the country ... 'Please do not bake cakes for gay weddings.'"
ACLU national legal director David Cole, representing Craig and Mullins, said the case should not turn on what constitutes artistic expression but rather the rule that once a retailer enters the public market, it must abide by state anti-bias rules, which in Colorado protect customers based on sexual orientation.
"Public accommodation law ... says you cannot discriminate on the basis of protected categories," he said.
Yet Kennedy wondered whether Phillips was refusing to serve the two men not because of their gay identity but rather their marriage, which is contrary to Phillips' religious beliefs.
That distinction could help Kennedy decide the case, as could his acknowledgement that myriad services -- arguably expressive services -- surround contemporary wedding planning. Exempt all of those, he suggested at one point, and, "It means that there's basically an ability to boycott gay marriages."