Same-sex ruling no piece of cake
WASHINGTON — In the legal clash between state laws barring businesses from discrimination on the basis of sexual orientation and the First Amendment’s protection of religious exercise and speech, U.S. Supreme Court Justice Anthony Kennedy is in the familiar position of being the decider.
But this case may be more of a struggle for the court’s so-called “swing voter” than most, as he’ll have to wrangle with past decisions — many authored by him — that gives support to both sides.
On one side is Colorado, which — like more than a dozen other states including Massachusetts — passed an antidiscrimination law that prohibits businesses from refusing service on the basis of sexual orientation, among other things. On the other side, Jack Phillips, a baker who refused to make a wedding cake for a same-sex couple because he said doing so would amount to compelled speech in favor of something he opposes on religious grounds.
Gay marriage cases are not unfamiliar to Kennedy. He penned the court’s seminal 2015 decision legalizing same-sex marriage nationwide, and focused heavily on the dignity and rights of gay couples and their families.
His concern about that dignity was apparent during arguments yesterday, when he wondered if a ruling in favor of Phillips would mean “that there’s basically an ability to boycott gay marriages.”
“If you prevail, could the baker put a sign in his window:
‘We do not bake cakes for gay weddings?’ ” Kennedy asked U.S. Solicitor General Noel Francisco, who argued in support of the baker.
When Francisco said gay couples could buy other products, Kennedy replied: “And you would not think that an affront to the gay community?”
But Kennedy’s concerns cut both ways, and he frequently expressed the view that Phillips’ religious views were not being respected by the state’s civil rights commission, which ruled against him.
“Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy said. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
He’s also voted to protect free speech and religious exercises of individuals and companies, from the Hobby Lobby case challenging the Obamacare contraception mandate, to Citizens United — another case he authored — which recognized free speech rights of companies in addition to the individuals who run them. The ruling in the current case — one of the biggest on the court’s docket — lies in which one of his own competing principles sways him the most.