WASHINGTON — The U.S. Supreme Court is poised to determine if the legal rights of married same-sex couples can be balanced with the constitutional protections of freedom of religion and speech guaranteed to people of faith who cannot accept same-sex “marriage” on moral and religious grounds.
But whether the high court issues another landmark ruling, such as its decision in 2015 to legalize marriage between two people of the same sex, or opts for the narrow alternative will likely rest on Justice Anthony Kennedy, the deciding vote in many of the high court’s closely decided cases.
“It’s a cliche, but cliches are often true: [Kennedy] appears to be the swing vote in this case, as in many other cases involving controversial social questions,” said Richard Garnett, a law professor and director of the University of Notre Dame’s Program on Church, State & Society.
Kennedy articulated his concern for civil rights and religious convictions in his questioning during the Dec. 5 oral arguments in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a case that legal analysts say is the highest-profile clash between religious freedom and legal protections for homosexual persons since the court’s June 2015 ruling in Obergefell v. Hodges.
“This is bigger than same-sex marriage. It’s about the freedom of all Americans to live and to think and to speak and work according to their beliefs,” Emilie Kao, the director of the Heritage Foundation’s DeVos Center for Religion and Civil Society, told the Register.
On the one hand, Kennedy pointedly asked if a baker could post a sign in his window saying, “We do not bake cakes for gay weddings.” When told by a government lawyer that the baker could, with some conditions, Kennedy responded: “You would not think that an affront to the gay community?”
But later on, Kennedy defended tolerance for religious dissenters as “essential in a free society,” and he criticized a Colorado civil-rights commission for not being respectful or tolerant of the religious beliefs of a baker who refused to design a wedding cake for a same-sex couple.
Lack of Consensus
Kennedy’s questioning underscored the tensions between his liberal and conservative counterparts on the bench. Much like the opposing sides in the case, Garnett told the Register that there appears to be very little consensus among the court’s nine justices regarding what Masterpiece is really all about. In their questions during oral arguments, the conservative and liberal justices framed the case very differently.
“It appeared from the questioning that the more liberal justices were skeptical of Mr. Phillips’ free-speech arguments — they worried how far Mr. Phillips’ argument might reach — while the more conservative justices had concerns about the government’s actions and about the risks of using official coercion against people who might have traditional views on marriage and family,” Garnett said.
In July 2012, Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, told two men who entered his shop wanting to buy a cake for their wedding that he did not design cakes for same-sex wedding ceremonies. Phillips offered to sell them a pre-made cake or any other baked good in his shop. Instead, the couple stormed out of the shop and later filed a sexual-orientation-discrimination complaint with the Colorado Civil Rights Commission, even though same-sex “marriage” was not legal in Colorado at the time.
In December 2013, an administrative judge ruled against Phillips, saying that designing and creating cakes for same-sex weddings were not speech protected by the First Amendment. The commission ordered Philips to start designing custom wedding cakes for same-sex couples or to stop designing wedding cakes altogether. In addition, the commission ordered Phillips and his staff to complete a re-education program and file quarterly compliance reports with the government.
Phillips lost appeals at the state level, and the Colorado Supreme Court declined to take the case. Phillips’ attorneys with Alliance Defending Freedom, a Christian public interest legal organization, successfully petitioned the U.S. Supreme Court to take up the case. With briefs filed and oral arguments heard Dec. 5, the high court is expected to issue a decision sometime in the summer.
Broad or Narrow Ruling?
Legal analysts say the court may issue a broad ruling that could have far-reaching effects for wedding vendors and impact how states and municipalities apply public-accommodation laws for same-sex couples.
“I certainly think the justices can decide on the rights of everyone to have access to essential goods and services,” Kao said. “Public-accommodations laws were originally intended to help people get access to basic goods and services. They can do that without forcing people like Jack Phillips to express messages in their artistry that violate their beliefs.”
However, the high court may also issue a narrow ruling specific to the Masterpiece case.
Gerard Bradley, a law professor at the University of Notre Dame, told the Register that the court could return the case to Colorado for further proceedings because there is ample evidence that one of the human-rights commissioners who heard Phillips’ case was biased against the shop.
“This would amount to kicking the can down the road for a while,” said Bradley, who believes the court will try to avoid setting the broader issue of how to balance the rights of homosexual persons and religious liberty. He said Kennedy, who wrote the majority opinion in Obergefell, the case that redefined marriage in the United States, has boxed himself into a corner by supporting same-sex “marriage” while at the same time extending olive branches to religious believers.
“In other words, he does not know what to do,” Bradley said. “It is possible, too, that Justice Kennedy will side with Jack Phillips, but write an opinion which is so closely tied to the particular facts of this case that it does not settle too many other gay-wedding scenarios.”
Douglas Laycock, a law professor at the University of Virginia School of Law who studies religious-liberty cases, told the Register that if the high court wants to issue a narrow ruling, it could decide the case on the basis of free exercise of religion rather than free speech, and to confine that to weddings.
“But that theory didn’t get much attention. And if they don’t see how to keep it narrow, that might scare off Kennedy,” Laycock said.
Drawing the Line
Judging by some of the justices’ lines of questioning, the high court may have to decide at what point to draw the line for constitutionally protected speech in wedding-vendor cases. For example, would free-speech protections also apply to photographers, makeup artists, hair stylists, tailors and chefs?
Justices Ruth Bader-Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor suggested all sorts of people could refuse to supply services for same-sex weddings. Breyer argued the court, if inclined to vote in Phillips’ favor, would not be able to write a decision that did not “undermine every civil-rights law since Year Two.”
Garnett, of Notre Dame’s Program on Church, State & Society, told the Register that there is only “a tiny number” of real cases involving wedding vendors who object to providing what they regard as creative or artistic services for same-sex ceremonies.
“And any ruling for the cake shop would be limited in its scope to situations where the government is compelling expression and where the services in question are readily available elsewhere,” Garnett said. “It would not extend to the regular provision of ordinary goods and services in the commercial sphere.”
Kao, of the DeVos Center for Religion and Civil Society, told the Register that the justices can draw the line based on the high court’s precedents.
“They have several precedents stating that artistic expression is protected free speech and that when there is an intent to communicate a message, that is speech,” said Kao, who supports Phillips’ argument that designing and creating a wedding cake is speech protected by the First Amendment.
“Jack Phillips is not fighting for the First Amendment for himself. He’s fighting for it for all people,” Kao said. “He wants everyone to be able to have the freedom to work according to their beliefs.”
‘Both Sides Should Be Respected’
Noting Kennedy’s ruling in Obergefell, where the justice wrote that individuals can oppose marriage of two persons of the same sex on the basis of decent and honorable religious or philosophical premises, Kao said the Masterpiece case is an opportunity for the high court to foster dialogue, pluralism and tolerance by protecting people on both sides of the marriage debate.
Said Kao, “People have different opinions on marriage, and both sides should be respected. That’s how you foster a more tolerant society, more civil dialogue and more peaceful pluralism in our country.”
Register correspondent Brian Fraga writes from Fall River, Massachusetts.