Sunday, July 1, 2018
By Jeremiah Ho
In reading the Supreme Court’s decision in Masterpiece Cake Shop, Inc. v. Colorado Civil Rights Commission, I could not help compare the tone and strategy of this decision with the Court’s four pro-gay rights decisions—Obergefell, Windsor, Lawrence, and Romer. My impulse to compare stemmed from knowing that these five decisions were all penned by Justice Anthony Kennedy, who recently announced his retirement from the Court.
Kennedy’s pro-gay decisions (especially Windsor and Obergefell) were often written with what many scholars have noticed was an uplifting “full-throatedness”—heralding the possibility of affording protection and recognition of sexual minorities and drawing facts from the cases in ways that generated empathy. However, in his Masterpiece decision, Kennedy’s opinion seemed reserved and its underlying logic was cerebral and cold. In Masterpiece, Kennedy has moved from siding with the protection of sexual minorities from discrimination to affirming an example of religious exercise that resulted in discrimination based on sexual orientation.
His pro-gay cases were frequently and heavily preoccupied with viewing sexual minorities through a large humanistic lens that was often demonstrated by drawing on the dynamic between recognizing the dignity of sexual minorities and finding that the animus that threatened such dignity as discriminatory and unconstitutional. This relationship between animus and dignity concepts has animated Kennedy’s previous pro-gay rights decisions—serving as an anti-stereotyping principle that has successfully pushed for recognition of the rights of sexual minorities and equality of treatment.
That is until Masterpiece Cake Shop. This case, as I see it, was a denial of service case based on sexual orientation. However, Kennedy and the other six justices focused on the religious freedom aspect of the case and minimized the entwined animus-dignity concepts from the prior pro-gay rights decisions. While mainstream media coverage of the case characterized the decision as “narrow,” I find it odd. The justification that Kennedy offers for affirming Jack Phillip’s religious exercise in refusing to bake a wedding cake for David Mullins and Charlie Craig mostly focused on the negative treatment that Mr. Phillips received from the adjudication review process in Colorado when his actions were deemed discriminatory under Colorado’s Anti-Discrimination Act. Kennedy called out several remarks by members of the review as contrary to a state’s duty under the First Amendment to remain neutral and not assert hostility toward one’s religious beliefs. What about the public accommodations aspect of this case? What about the stigma that overshadowed the dignity of Mullins and Craig when they were refused service because of who they are? Compared to the Court’s prior pro-gay decisions, Kennedy seemed to be scraping for a reason to justify Philip’s free exercise of religion and turning his empathetic eyes away from Mullins and Craig.
To link all of these gay rights cases together, Masterpiece seems to halt progress in the middle of a long incremental path that had been building more steadily toward anti-discrimination for LGBTQ individuals. But throughout this term at the Court—perhaps it’s also the political climate—I have had a less confident feeling about the success of this case for Mullins and Craig. I still don’t know what prompted by hesitancy precisely. I think it might have been the controversial argument that baking a wedding cake was a protected act of free speech and/or religious expression—an argument steeped with legalism and fueled by the rights rhetoric that lawyers love to stand behind. I was fearful that such an argument could lead us blindly down a path that was outcome determinative against gay rights. Kennedy’s opinion didn’t necessarily proceed down this exact path to get to its less than pro-gay holding. It did not venture into the artistic free speech territory as fervently as I thought it could. But it certainly is outcome-determinative to some degree. And it was legalism with shaky factual justification at best. And therein seals his legacy on gay rights cases.
Justice Kennedy’s opinion attempted to narrow its holding when he writes in Masterpiece that “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts.” What he seems to be saying is that this case is exceptional and not the end of the conversation between religious freedom and the equality and protection of sexual minorities in the marketplace. However, the case doesn’t seem to be as narrow as Kennedy states it is as this week the Court also remanded a similar denial of service case, Arlene’s Flowers Inc. v. Washington, back to the Washington state supreme court for further consideration in light of Masterpiece.
Of course, there are other small business cases out there, waiting to be heard. But in the meantime, no matter how narrow the justices and lawyers want to characterize this decision, I am certain that some business owners will likely exercise their animus toward sexual minorities in the name of religious belief—or, worse, substitute their animus for any modicum religious belief at all. In that sense, I see this case—and interpretation of this case by those in the open market—as giving license to discriminate.
In the long run, I am remaining hopeful that there will be more advances in LGBTQ rights despite Masterpiece—even after hearing of Justice Kennedy’s retirement from the Court. The advancement of human rights has long been a struggle that can be observed as “two steps forward, one step back.” This one case might be that one step back; it might be the “Empire Strikes Back” of gay rights cases. I can only hope for advancement. Perhaps the flimsiness of its rationale might be its undoing. What I am concerned about from this decision is its effect on the visibility of LGBTQ individuals in the marketplace and the erasure of our dignity. In order to advance, we must continue to buy wedding cakes. We must stay in the marketplace. We must maintain the expression and exercise—however free or not—of our identities.