…Here I Am, Stuck in the Middle with Anthony Kennedy

Don’t worry, Dave, one’s a boy bike and the other’s a girl bike

Poor Anthony Kennedy. Masterpiece Cakeshop has literally pleased no one. Legal scholars left and right are united in calling the opinion a whopping nothingburger, one that provides absolutely no guidance for same-sex couples who want wedding cakes or for the Christian bakers who blanche at the thought of baking them. But I’m with Anthony Kennedy on this one. Ignore the noise, insist on basic decency, and let the machine grind away.

By now, everybody should be familiar with the basic facts of Masterpiece Cakeshop. Charlie Craig and Dave Mullins (same-sex couple) asked Jack Phillips (Christian baker) for a wedding cake. Phillips said no. He offered to sell him anything else in the store, but said he would not create a cake for a gay wedding. His conscience would not allow it. Craig and Mullins brought an action under Colorado’s Anti-Discrimination Act. The wheels of the administrative state set to spinning and Colorado ultimately ordered the Christian baker to cease and desist his discriminatory policy.

Masterpiece Cakeshop is a terribly flawed test case for a number of reasons I won’t go into. Simply put, there were problems enough that Kennedy was able to write narrowly for a seven-member majority without ever touching on the actual issues that the case was supposed to decide. He took the spotlight off of the same-sex couple and the Christian baker and pointed it squarely at the Colorado Civil Rights Commission, which evinced a clear hostility to Christian views that violated the state’s obligation of religious neutrality.  On this subject, the Court put up the reassuring margin of 7-2, suggesting that some law might indeed transcend politics.

But in dueling concurrences, Elena Kagan and Neil Gorsuch tore through the paper that masks the Court’s ideological rift. Justice Gorsuch claimed that the state could no more accuse Christian bakers of discriminating than it could accuse liberal bakers of discriminating if they refused to make cakes for Christians bearing anti-gay messages. In both cases, Gorsuch argues, the bakers are basing a refusal on their moral beliefs, and the state cannot articulate a principled means of distinguishing between different moral beliefs. Sure you can, retorted Kagan. The liberal bakers who refused to craft anti-gay messages would have refused to make any anti-gay message cakes. But the Christian bakers make wedding cakes for all ceremonies except gay weddings. That is discrimination.

The impossibility of reconciliation here is stark. To the left is Kagan, who treats all marriages as being the same. This is all fine and well, but in historical time, gay marriage as a legally-sanctioned practice (let alone a right) is newborn, and it is willful ignorance to pretend otherwise. To the right is Gorsuch, who treats the condemnation of hate speech and the condemnation of gay marriage as equivalencies. He is only a few logical steps away from treating homosexuality as a moral choice in-and-of-itself, a deeply offensive proposition. If Kagan and Gorsuch’s positions have anything in common, it is that they insist upon an absolute standard that would bring a fair share of social (and perhaps political) confrontation.

Given the Court’s ideological divide, I think it remarkable that Kennedy got seven members to agree to some basic fundamentals. “Our society has come to the recognition,” Kennedy pens, “that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” But he quickly reminds his audience that even Obergefell acknowledged that religious persons with heartfelt objections to same-sex marriage would find some protection for their conscience. Most obviously, the state could not compel a Baptist minister (or any member of the clergy) to officiate at gay weddings. As for Christian bakers, Kennedy points out that Colorado law allows merchants at least some latitude to refuse to craft messages they find offensive. Kennedy placates the people on his right with promises of religious exceptions, although preferably determined at the local level by fair judges.

Kennedy is no less soothing to the people on his left, many of whom wring their hands at the possibility of a free exercise exception for bakers. Where will it lead next? Will florists and hair dressers claim religious exemption? What about the purveyors of rental chairs for wedding receptions? Hush now, says Kennedy, the general rule is still that merchants have to comply with public accommodation laws. And if we abandon this rule, then “a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons.” And that, Kennedy admonishes, would be untenable.

What Kennedy does not do is actually answer the question of whether a Christian baker has to create a wedding cake for a same-sex couple. This has irritated most legal commentators, but it is precisely what I like about his opinion. Kennedy might speak politely to the people on his left and right, but he’s firm as well. He takes pains to remind the people on his right that religion cannot be an excuse for bigotry. Merchants of rental chairs will find no refuge from public accommodation laws in Kennedy’s opinion. (It is unlikely that they will find refuge in Gorsuch’s concurrence either, since he invests the wedding cake itself with a sort of spiritual significance, but I digress.) And he reminds people on his left that it will not do to dismiss out-of-hand heartfelt religious objections. Civil rights commissions, after all, should never take lightly its power to compel any person—Christian, Muslim, Hindu, Jewish or otherwise—to act against their religious convictions.

Kennedy appears to be coaxing the states invested in the protection of gay rights to be reasonable. State law, Kennedy reminds us (while likely sliding the glasses down his nose, tilting his head slightly and baring the whites of his eyes), allows merchants some control over the message that they are asked to craft, as well it should. Find a reasonable way to accommodate conscience and the Supreme Court won’t need to step in. But hey, your choice. Keep treating Christians like troglodytes and we’re happy to afford them the full protection of the First Amendment.

Kennedy’s opinion was not crafted to satisfy anyone with strong ideological commitments. It’s a pragmatist’s opinion, reinforcing universal values while asking everyone involved to just chill. And why not? Most Christians support gay marriage and, I would wager, are not particularly thrilled with being defined by their embarrassing fringe.[1] Same-sex couples in Colorado are going to have their wedding cake, even if it’s not from Masterpiece Cakeshop. And even those deeply committed to rooting out every instance of discrimination have to be aware that nothing activates reactionary backlash more than the Supreme Court’s high pronouncements. For now, at least, we’re all stuck in the middle with Anthony Kennedy.

For further political and scholarly perspectives, see Jennifer Pizer of Lambda Legal discuss the ruling with CounterSpin, as well as Cornell University’s Larry Glickman in the Boston Review.


[1] The evidence of social acceptance of gay marriage is overwhelming no matter which way you cut the cake. In the most recent polling, two-thirds of Catholics and white mainline Protestants support legal gay marriage. 51% of Muslims support it. Now, to be sure, 58% of evangelical Protestants still oppose gay marriage, but this is down from 71% who opposed it in 2013. Mormons, who also still oppose gay marriage, show a declining resistance as well: https://www.prri.org/research/emerging-consensus-on-lgbt-issues-findings-from-the-2017-american-values-atlas/