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n a controversial Supreme Court case arising from Colorado’s treatment of gay rights and private businesses, Justice Anthony Kennedy announced that the Court would stand to protect the dignity of minorities singled out by state animosity: “If the constitutional conception of ‘equal protection of the laws’ means anything,” he wrote in his majority opinion, “it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.”
You might think this quote comes from Justice Kennedy’s majority opinion in Masterpiece Cakeshop v. Colorado, in which seven of the Court’s nine members agreed to strike down Colorado’s punishment of a Christian baker for refusing to create a custom-made cake celebrating a same-sex wedding. But in fact, the quote is from Justice Kennedy’s opinion in the 1996 case Romer v. Evans, a case involving a Colorado law that protected the right of private companies to discriminate against homosexuals.
Kennedy’s attempt to frame his constitutional protection for homosexuals in terms of human dignity for all against what he saw as the unreasonable animosity of Colorado’s popular majority was controversial in 1996. In his Romer dissent, Justice Antonin Scalia wrote that “the Court’s opinion is so long on emotive utterance and so short on relevant legal citation.” And it is no less controversial today. But it became the basis for Kennedy’s generation-long work of expanding constitutional protection for homosexuals. He began with Romer. Then came the Court’s 2003 announcement of a right to engage in homosexual sodomy. That was followed by the Court’s 2013 decision striking down the federal Defense of Marriage Act. All this was capped off by the Court’s 2015 announcement of a constitutional right to same-sex marriage. Kennedy authored all of these opinions for the Court, elaborating what might be called a “jurisprudence of dignity.”
Perhaps it is ironic, then, that Justice Kennedy invoked his jurisprudence of dignity in the other direction in Masterpiece Cakeshop. He wrote for the court not in favor of the homosexual couple who demanded that Jack Phillips bake a cake celebratingtheir wedding, but rather in favor of Phillips. But it is unsurprising—except, perhaps, among those who believe that traditional religious beliefs are themselves undignified.
In 2012, Charlie Craig and Dave Mullins visited the Masterpiece Cakeshop in Lakewood, Colorado. They were planning to marry. Though same-sex marriage was not yet legal in Colorado then, it was legal in Massachusetts; so they planned to marry in Massachusetts, then return home to Colorado to celebrate with friends and family. And a cake.
“I’ll make your birthday cakes, shower cakes, sell you cookies and brownies,” Mr. Phillips told them, according to the Supreme Court’s opinion. “I just don’t make cakes for same sex weddings.” The reason for Phillips’s refusal was straightforward. “Jack Phillips is an expert baker who has owned and operated the shop for 24 years,” the Court explained. “Phillips is a devout Christian. He has explained that his ‘main goal in life is to be obedient to’ Jesus Christ and Christ’s ‘teachings in all aspects of his life.’ … And he seeks to ‘honor God through his work at Masterpiece Cakeshop.’” Which, consistent with the Christian Bible’s teachings and tradition, does not include celebrating one man marrying another.
Another couple might have rejected Phillips’s offer and vowed never to buy another cupcake from him ever again. But Craig and Mullins took another approach: They called upon the State of Colorado, through the state’s Civil Rights Commission, to punish Phillips for what he’d done.
Colorado agreed. Rejecting Phillips’s invocation of his First Amendment rights to free speech and free exercise of his religion, the state’s commission ordered Phillips to “cease and desist from discriminating against [Craig and Mullins] and other same-sex couples by refusing to sell them wedding cakes or any product [he] would sell to heterosexual couples.” Which is to say, the state ordered Phillips to prepare the customized wedding cakes on demand. And the Colorado courts agreed, leaving Phillips to petition the U.S. Supreme Court for relief.
The petition asked the court to consider “whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” If the Court grappled fully with either of those questions, the result could have been a landmark decision. Kennedy and his colleagues could have ruled in favor of Colorado and the couple, thus removing the First Amendment as a shield against the advancement of same-sex-marriage rights and interests through neutrally worded anti-discrimination laws. Or they could have ruled broadly in favor of Phillips, thus blocking the use of those neutral anti-discrimination laws as a sword against traditional religious believers.
But those seemed to be questions on which the Court’s nine justices would probably be sharply divided—likely four on one side, four on the other, with Justice Kennedy in the middle. So the Court resolved the case on narrower grounds for which there was a substantial majority of justices in agreement. Instead of deciding whether the right to free exercise of religion in such expressive commercial contexts always trumps state anti-discrimination laws on the question of same-sex marriage, the Court held merely that this particular administrative proceeding violated Phillips’s constitutional free-exercise right. Why? Because the Commission’s decision seemed motivated, at least in part, by sheer animosity to religion.
“At several points during its meeting,” the Court explained, “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” In one of the hearings on the Phillips case, a commissioner aimed an astonishingly hostile attack at Phillips’s religious motivation that none of her fellow commissioners disclaimed or disputed:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.
This was too much for the Justices to abide, and the Court’s decision pivoted upon this. “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways,” Kennedy’s majority opinion explained: “By describing it as despicable, and also by characterizing it as merely rhetorical.… This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law.” The Court was also troubled by starkly different treatment that the commission afforded bakers who refused to bake cakes with messages critical of same-sex marriage.
Taking the Commission’s statements and disparate conduct together, the Court concluded that Colorado’s action against Phillips was unconstitutionally motivated by hostility toward his religious beliefs. “The Constitution ‘commits government itself to religious tolerance,’” the decision said, “and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.” In this particular case, in light of the Colorado Commission’s actions and stated motivations, “the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his’ religious beliefs.”
And so the Court reversed the Colorado court’s decision affirming the state commission, but in so doing, the majority opinion took care to stress that its decision does not necessarily preclude states from applying anti-discrimination laws in a way that burdens the exercise of religion:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that their 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.
We can only imagine the number of justice-hours that went into crafting that paragraph to win the approval of seven justices. The triple negative—“without undue disrespect”—is particularly pregnant: Why not just “with due respect” for sincere religious beliefs? Indeed, is the Court implying that in the conflict between same-sex marriage and the exercise of traditional religion, there is such a thing as “due disrespect” for religious belief, and that it would be constitutionally permissible?
While the opinion was written by Kennedy, the narrowness of the ruling and the breadth of justices joining it is a hallmark of Chief Justice Roberts’s tenure leading the Court. As Roberts explained to a Rice University audience in 2012, “I think the broader agreement you can get on the Court, the better. And the way you get to broader agreement is to have a narrower decision.” In cases ranging from the constitutionality of the Civil Rights Act’s redistricting provisions, to abortion protests, to even the Affordable Care Act’s attempt to force states to expand Medicaid, Chief Justice Roberts’s power to assign majority opinions seems to have facilitated the building majorities of justices across normal ideological lines—broad agreements on narrow propositions. The Court’s decision in Masterpiece Cakeshop seems the latest case in that line.
But in considering analogous lines of precedent for the Court’s approach in Masterpiece Cakeshop, the most pressing and portentous precedents might be the recent Court’s affirmative-action decisions. In those cases, as in Masterpiece Cakeshop, the Court declared a bright-line rule prohibiting unconstitutional actions by the states. But in the affirmative-action cases, the initial bright line became a road map for state officials to avoid detection instead of deterring them. For example, the Court declared in Grutter v. Bollinger (2003) that “a race-conscious admissions program cannot use a quota system” and “may consider race or ethnicity only as a ‘plus’ in a particular applicant’s file.” But instead of reducing race-centric state-university admissions, Justice Sandra Day O’Connor’s opinion for the Court had the opposite effect, as Richard Sander and Stuart Taylor Jr. highlighted in their empirical study, Mismatch: “Selective schools around the country interpreted Grutter as a green light to use preferences aggressively and mechanistically so long as they did not overtly use ‘quotas’ or ‘points.’”
So it may be with Masterpiece Cakeshop. The most immediate lesson learned by state anti-discrimination officials may not be to avoid hostility toward religion, but rather to avoid boasting about their hostility. The Court’s opinion in Masterpiece Cakeshop focused on hostility per se, not just the bureaucratic admission of hostility. Accordingly, for this legal test to maintain any meaningful viability, it will require federal and state courts to look beyond mere appearances.
When state officials punish businesses and people for conduct rooted in religious belief and reject the defendants’ invocation of the First Amendment as protecting their exercise of religion, the courts will need to look closely to ensure that the state officials are not actually motivated by anti-religious bias. Patterns of disparate treatment like that in Masterpiece Cakeshop, where a religious baker’s punishment stood in stark contrast to the liberty enjoyed by bakers of opposite beliefs, would speak louder than bureaucratic words.
But above all else, Kennedy’s opinion exemplifies the theme at the heart of all of his gay-rights opinions: the importance—indeed, the constitutional importance—of protecting vulnerable minorities from hostile, prejudiced majorities. Except that in this case, the vulnerable minority wasn’t a same-sex couple but a Christian baker.
First came 1996’s Romer. Then, in striking down Texas’s criminal statute against homosexual sodomy as an unconstitutional burden on personal liberty in Lawrence v. Texas (2003), Kennedy’s opinion stressed that the Court’s own prior acceptance of such laws “demeans the lives of homosexual persons.” Kennedy returned to these themes in U.S. v. Windsor (2013). He wrote the opinion for the Court against the constitutionality of thefederal Defense of Marriage Act (DOMA), which had defined marriage, for purposes of federal law, exclusively in terms of the marriage of a man and a woman. “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal,” he wrote, and this “differentiation demeans the [same-sex] couple.” And so the Court declared DOMA unconstitutional, “for no legitimate purpose overcomes the purpose and effect to disparage and to injure” same-sex couples.
While nominally limiting his analysis to a federal law on marriage (a subject long governed primarily by the states), Kennedy’s opinion seemed to point clearly to the wrongness of state marriage laws. Prominent law professors encouraged him in this aim by attempting to tie his novel jurisprudence-of-dignity narrative back to well-respected Supreme Court precedents, especially Brown v. Board of Education. Bruce Ackerman’s We the People: The Civil Rights Revolution (2014) reframed the Court’s nullification of state-enforced racial segregation in terms of “the distinctive wrongness of institutionalized humiliation.” Of the Windsor case, Ackerman wrote, “Justice Kennedy’s opinion was simply a restatement of Brown’s anti-humiliation principle.” Ackerman was joined in this work by NYU’s Kenji Yoshino and others who attempted to map the “anti-humiliation principle” onto American constitutional law, building a case against traditional marriage laws.
When the Court took the final step of declaring a constitutional right to same-sex marriage a year later, in Obergefell v. Hodges (2015), Kennedy’s opinion for the Court yet again struck these chords: “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. … They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Scholars declared victory and looked ahead to how this anti-humiliation principle might further be used against oppressive state and federal governments. Harvard’s Laurence Tribe argued that the anti-humiliation principle “signals the beginning of the end for discrimination on the basis of sexual orientation in areas like employment and housing.” Yoshino, in the prestigious “Foreword” essay opening the Harvard Law Review’s 2015–16 volume, declared that Obergefell heralds a “New Birth of Freedom,” perhaps reaching as far as reproductive rights. “Of course,” he added, “what counts as a ‘subordinated group’ will be up for debate.”
Indeed, it would be. Yoshino expressly held open the possibility that people forced to serve same-sex weddings, “such as the florist or restaurateur who does not wish to cater a gay wedding,” might indeed be a “subordinated group” claiming protection against government humiliation.
Too few progressives took this point seriously. It was an ironic oversight. Many of those who declare traditional religious views to be decreasingly popular in America, and who presume that religious believers are destined to become an irrelevant minority in American public life, fail to see that the very same trajectory could render traditional religious Americans to be the sort of discrete and insular minority that is at risk of oppression and—yes—“humiliation” at the hands of an energized majority. They would thus be precisely the sort of group that would receive heightened protection from the Court. Perhaps more proponents of same-sex marriage should have taken this point seriously. Perhaps Justice Kennedy’s opinion in Masterpiece Cakeshop will compel them to do so.
But at the same time, those who celebrate Masterpiece Cakeshop should pause and consider the implications of this path. Justice Kennedy worried this year about a state’s “undue disrespect to sincere religious beliefs.” More worrisome is what future judges might deem to be “due disrespect” for them.
