Conservatives join Kennedy in narrow cake ruling
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Things appeared to be winding down last Monday on the live blog at Scotusblog, a website popular with observers and journalists covering the U.S. Supreme Court. Whenever the court issues decisions, http://www.scotusblog.com has seasoned journalists posting, within seconds, the quick details of the news: what case has been decided, which justice wrote the decision, and the result - whether the court affirmed the lower court decision or reversed it.
On June 4, LGBT legal activists were awaiting a decision in one major LGBT case: Masterpiece Cakeshop v. Colorado. And they were hoping to see the words "affirmed." A state court had ruled that Jack Phillips, the owner of a bakery in Colorado, could not use his religious beliefs to circumvent a state anti-discrimination law. Phillips had done just that, when he refused, in 2012, to sell a cake to a same-sex couple for their wedding reception.
Many court observers believed that court's most veteran member, Justice Anthony Kennedy, would be the likely author of the Masterpiece decision. He has written most of the important LGBT-related decisions in recent years. And on a court whose other eight members were evenly split between those who tended to support equal rights for LGBT people and those who tended not to, Kennedy had always been the tiebreaker.
Supreme Court decisions are typically announced from the bench, starting at 10 a.m., by the justice who wrote the decision. The decisions are announced in order of seniority, so Kennedy - if he had a decision to announce that day - would be last. There were 29 decisions still pending, so there was no guarantee that Masterpiece would be one that day. In fact, in past years, LGBT-related decisions were almost always announced on the last day of the court's session at the end of June.
Just before 10 a.m., scotusblog noted that the press office had just brought out paper copies of the day's decisions in "two boxes." This is Supreme Court press code for "probably two decisions, maybe three." But reporters can't see the paper copies until the court has started announcing the decision from the bench.
10:02 a.m.: First decision announced is from Justice Sonia Sotomayor. It's a bankruptcy case. So the next decision would have to come from Sotomayor or any of the more senior members of the bench.
10:07 a.m.: The next decision is out. It's from Kennedy. It's a case involving an issue in sentencing.
10:12 a.m.: Scotusblog notes that the court is suddenly diverting from its usual protocol around seniority. Justice Samuel Alito, one of the more junior members, is announcing a third decision to be released that day. It's another sentencing case.
Then two minutes later, a fourth decision is announced:
"We got Masterpiece," says scotusblog. "It is by Kennedy and it is reversed."
Not Kennedy "affirmed." Kennedy "reversed."
And only Justices Sotomayor and Ruth Bader Ginsburg were in dissent.
The stunning complexity of it all
The longer one watches the U.S. Supreme Court, the stronger one feels trepidation about predicting outcomes. But the outcome with Masterpiece Cakeshop v. Colorado brought a new level of unpredictability to Supreme Court decision-making, particularly for LGBT people.
Yes, many court observers opined last December that the questions Kennedy asked and the remarks he made during oral argument seemed to indicate he was leaning away from the pro-LGBT trend he had established for years. He admonished a member of the Colorado Civil Rights Commission - the commission that initially ruled against baker Phillips - for making remarks that he, Kennedy, said showed "hostility to religion" and were disrespectful of Phillips' religious views against marriage for same-sex couples. He wondered aloud why the gay couple that was turned away by Phillips didn't just go to another bakery.
But even with that backdrop, it was a stunning result to have the justice regarded by many as the court's champion for LGBT equality rule against the community's position in a case critical to the viability of what few laws in this country prohibit discrimination against LGBT people.
It was stunning, too, to see that two other justices who typically vote for the LGBT legal position - Justices Stephen Breyer and Elena Kagan - voted with Kennedy and the court's conservatives.
Then legal activists and analysts began to study the details of Kennedy's decision, and the view transformed.
The 7-2 majority had not ruled that a business owner's religious views gives him a free pass to violate civil rights laws that prohibit discrimination based on sexual orientation. They ruled only that, in their judgment, the record showed there had been significant hostility shown by the Colorado commission for Phillips' religious views against marriage for same-sex couples.
The First Amendment's guarantee that people shall have free exercise of religion, said the majority opinion, means the government (in this case, the commission) cannot "act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."
The Supreme Court set aside and invalidated the rulings against Phillips and said the greater issues in the case - concerning religious beliefs and civil rights laws protecting LGBT people - would have to be "resolved in the future ...."
The striking thing about how the majority handled the case, however, was that it could have easily resolved its concern about the commission's "hostility" with a brief order. Instead, it provided an 18-page majority opinion that signaled the Supreme Court's concern that gay people be treated with "dignity and worth," that laws "can, and in some cases must" protect them, and that their efforts to be treated equally must be given "great weight and respect" by the courts.
Kennedy, Breyer, Kagan, and three conservative members - Chief Justice John Roberts and Justices Alito and Neil Gorsuch - signed onto this language:
"Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts."
Lambda Legal Defense and Education Fund's Jenny Pizer said the paragraph could have "great significance."
"It is dicta," she explained, referring to the fact that the paragraph was not a ruling on the matter at hand - the way the commission handled the complaint against the baker. But, she said, it is "a strong statement of how Kennedy is thinking about this question, and probably how he's engaging the other justices."
"He got Roberts, Alito, and Gorsuch to join that language," said Pizer.
Shannon Minter, legal director of the National Center for Lesbian Rights, agreed.
"The decision is so narrow that almost everything in the opinion is dicta, including that statement, but it's still powerful," Minter said.
It's powerful to realize, too, that any of the conservative justices could have concurred in the judgment in favor of Phillips without signing onto Kennedy's opinion.
That's what Justice Clarence Thomas did. He wrote his own opinion, concurring in the majority's judgment but saying he thought the baker should have won on the First Amendment issue. Thomas said cakes constitute an "expression" and that Phillips' creation of cakes makes him an "active participant" in the weddings where his cakes are served. Therefore, said Thomas, the baker's refusal to create a cake for a same-sex couple is protected by the First Amendment.
"By forcing Phillips to create custom wedding cakes for same-sex weddings," said Thomas, "Colorado's public-accommodations law 'alter[s] the expressive content' of his message."
It is worth mentioning here that neither the Colorado law nor the commission that enforced that law forced Phillips to "create custom wedding cakes for same-sex weddings." The commission just said that, if Phillips was going to sell wedding cakes to male-female couples, he must sell them to same-sex couples.
The cake designs shown on Masterpiece Cakeshop's website illustrate that the vast majority of the wedding cake designs Phillips offers have neither religiously oriented symbols nor male-female images. They include flowers and swirls.
And, as Ginsburg explained in her dissent, the gay couple that sought a cake from the Masterpiece Cakeshop "simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold" to a male-female couple.
"What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple," wrote Ginsburg. The gay couple was "denied service based on an aspect of their identity that the state chose to grant vigorous protection from discrimination." Ginsburg, joined by Sotomayor, said she would have affirmed the lower court decision.
And thus, three justices have put their cards on the table: Thomas would give a First Amendment-based pass to business owners who wish to discriminate against LGBT people; Ginsburg and Sotomayor would not.
It will take another case - one untainted by side issues, such as commission neutrality - to decide the matter.
"The outcome of cases like this in other circumstances," said Kennedy, writing for the majority, "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."