Monday, July 25, 2022
Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, 13 ConLawNOW 75 (2022)
This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ community. The essay next asks and answers the question: What will a post-Justice Kennedy Court mean for LGBTQ people and the 25 years of constitutional progress reflected in his Queer Canon? Through a comparative analysis of the Court’s two post-Justice Kennedy decisions, Bostock v. Clayton County and Fulton v. City of Philadelphia, Justice Kennedy’s Queer Canon, and his opinion in Masterpiece Cakeshop, this essay contends that the progress made during the Justice Kennedy era is a fragile progress, one that is under threat by the current Court.