Anthony Kennedy Disappointed Everybody in Masterpiece Cakeshop. No Surprise, He's Done It Before.
The mercurial justice lets everybody down, again.
One of the most notable things about Justice Anthony Kennedy's majority opinion this week in Masterpiece Cakeshop v. Colorado Civil Rights Commission is the fact that it denied everybody what they wanted most.
Masterpiece Cakeshop owner and operator Jack Phillips wanted the Court to say that his right to religious liberty prevents the state from compelling him to create same-sex wedding cakes, since that would force him to violate his deeply held religious beliefs. The Colorado Civil Rights Commission wanted the Court to make clear that Phillips' argument for religious liberty cannot and indeed must not trump the state's anti-discrimination laws. If Phillips wants to sell wedding cakes, the state maintained, he must sell them to all comers regardless of race, religion, or sexual orientation.
Kennedy's opinion said none of those things. Here is what it did say:
The Court's precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance that the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission decided this case, it did not do so with the religious neutrality that the Constitution requires.
Translation: Phillips won, but he did not come anywhere close to winning on the principal legal argument that he advanced. What is more, Phillips' principal legal argument might well lose in a future version of the case (or then again it might not) so long as the government's proceedings against him manage to avoid the taint of anti-religious bias. The real fight has been postponed until an unknown later date.
This result has left both sides feeling disappointed. But here's the thing about that: Disappointing everybody is a classic Kennedy move. Indeed, it's one of the hallmarks of his jurisprudence. Over the years, Kennedy has managed to dash the hopes and dreams of liberals, conservatives, and libertarians alike.
Consider his rulings on abortion.
In Planned Parenthood v. Casey (1992), Kennedy famously co-authored the plurality opinion that is widely credited with saving Roe v. Wade (1973) from being overturned. Casey both reaffirmed that abortion is a fundamental right and held that government regulations may not "impose an undue burden on the right."
Abortion rights advocates cheered that ruling and gave kudos to Kennedy. Yet in 2007 those same advocates were left reeling by Kennedy's majority opinion in Gonzales v. Carhart, which upheld the 2003 Partial-Birth Abortion Ban Act signed by President George W. Bush. They felt like Kennedy betrayed them.
Anti-abortion advocates were of course pleased by the result in Carhart, though they too felt the Kennedy sting. That's because Carhart reaffirmed the central holding of Casey. As Kennedy declared in his Carhart ruling, the government may not impose "an undue burden, which exists if a regulation's 'purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.'" Kennedy disheartened the anti-abortion forces even as he handed them a victory.
As for libertarians, Kennedy's tie-breaking fifth vote in favor of eminent domain in Kelo v. City of New London still rankles. "The most frustrating justice for us was Kennedy," Institute for Justice lawyer Scott Bullock told me. Bullock represented Susette Kelo and the other property owners in their fight against the government land grab. "I felt like I was just not making any progress with him during the [oral] argument, and he just did not seem to be really troubled by this."
Bullock expected Kennedy to be more receptive because Kennedy's previous jurisprudence had been generally hawkish in defense of property rights. In United States v. James Daniel Good Real Prop. (1993), for example, Kennedy had declared, "individual freedom finds tangible expression in property rights." But that version of Kennedy was totally AWOL from Kelo. As far as libertarians were concerned, Kennedy stabbed them in the back.
So Masterpiece Cakeshop is hardly the first time that Justice Kennedy has managed to disappoint everybody. The question is whether it will be the last time. Rumors of Kennedy's retirement are currently circulating around Washington. Should he step down later this month, Masterpiece Cakeshop would be one of his final opinions. As far as picking a swan song for his mercurial career on the bench goes, Kennedy could do worse.
