Kennedy Ends ‘Masterpiece’ With LGBT Rights Legacy Intact

Law360, Washington (June 5, 2018, 10:59 PM EDT) — The case of a baker who refused custom cake orders for same-sex weddings on religious grounds was perhaps the biggest test yet of Justice Anthony Kennedy‘s robust LGBT rights legacy, but after the dust settled on Monday’s ruling in favor of the baker, that record remained largely unblemished.

In the months leading up to Monday’s decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, many court watchers expected it to be the moment where Justice Kennedy handed a broad victory to religious activists after decades of exercising his swing vote to delineate various legal protections for gays and lesbians.

But in siding with Masterpiece Cakeshop owner Jack Phillips, who was disciplined by the Colorado government for turning down a gay couple’s wedding cake order, Justice Kennedy’s majority opinion relied on the narrow grounds that the proceedings were tainted by anti-religious bias, while leaving questions around the First Amendment and religious objections to same-sex marriage for another day.

Supposedly anti-religious remarks made by a member of the Colorado Civil Rights Commission during a hearing in Phillips’ case were “inappropriate for a commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law,” Justice Kennedy wrote.

His opinion emphasized the importance of respecting both LGBT people and those with sincere religious beliefs, while saying that the outcome of future cases presenting similar issues would need to await “further elaboration in the courts.”

As a result, Justice Kennedy was able to escape from what could be the 82-year-old jurist’s last major gay rights case without doing lasting damage to a record in favor of LGBT people that stretches back to the mid-1990s, according to experts interviewed by Law360.

“With this decision, the Supreme Court did not rule as broadly as those supporting the baker had hoped,” said Lisa Linsky, a partner at McDermott Will & Emery LLP who started the firm’s LGBT diversity program. “They had hoped for what amounts to a license to discriminate on the basis of religious liberties. That is not at all what this decision provides.”

Quite the contrary, Justice Kennedy “goes to great lengths to send the message that that is not the intention of the majority decision,” Linsky said.

Another reason why his Masterpiece opinion “does not adversely impact” the justice’s LGBT rights legacy are the various passages of the decision defending the dignity of the gay and lesbian community, she said. In one he wrote, “Any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

“That’s very powerful and affirming language,” she said.

Linsky, who sits on the board of the LGBT Community Center in New York City, is far from the only LGBT civil rights activist finding a silver lining to a decision that otherwise is being hailed by the Trump administration as a victory for religious liberty.

Robbie Kaplan, the attorney who argued the landmark LGBT rights case U.S. v. Windsor at the Supreme Court, said she didn’t know how “anyone can read that opinion and see it in general terms as anything other than a ringing endorsement of the equal dignity of gay people,” one joined by Chief Justice John Roberts Jr., no less, she added.

“[Justice Kennedy] does not intend for this decision to be a license to discriminate,” said Kaplan, the founding partner of Kaplan & Co. LLP. “Anyone who reads it that way needs better lessons in English grammar and writing.”

As to whether Masterpiece Cakeshop sullies Justice Kennedy’s LGBT rights legacy, Kaplan said, “I don’t think it does at all.”

“I thought June 26 at some point in the future should be Justice Kennedy day, and I have not in anyway departed from that view,” she said, referring to the day the court handed down its 5-4 decision in U.S. v. Windsor.

Justice Kennedy’s record advancing legal protections for gays and lesbians stretches back to the mid-1990s, when, writing the majority opinion in Romer v. Evans, he helped strike down a Colorado state constitutional amendment denying protected class status to LGBT individuals.

Justice Kennedy also wrote for the majority in the 2003 case Lawrence v. Texas, scrapping that state’s anti-sodomy law as unconstitutional. He did so again in 2013 in U.S. v. Windsor, holding that a provision of the federal Defense of Marriage Act defining a marriage as between a man and a woman was similarly unconstitutional.

The Ronald Reagan appointee then delivered what is widely considered to be the capstone of his LGBT jurisprudence in Obergefell v. Hodges, the 2015 decision that recognized a constitutional right to same-sex marriage that had the effect of striking down bans on the practice in various states across the country.

But despite those rulings, there was reason to believe that Kennedy would be sympathetic to Phillips’ claim that by forcing him to sell his high-priced and intricately designed confections for same-sex weddings, the state was compelling him to express a message of support for the ceremony in violation of his First Amendment right to free speech. That’s because Justice Kennedy’s track record in free speech cases, including with religious aspects, is also extensive, if less known.

Just a year before his opinion in Romer v. Evans, for instance, Justice Kennedy wrote the majority opinion in Rosenberger v. University of Virginia backing a student-run religious magazine at UVA that had been denied subsidies available to secular publications.

More recently, Justice Kennedy wrote a concurrence to the court’s 8-0 Matal v. Tam decision in which he said that a provision of the Lanham Act barring the registration of disparaging trademarks constituted impermissible viewpoint discrimination by the government.

“His legacy with regard to the major gay rights decisions is here, but so is his legacy with regard to freedom of speech,” Villanova University law and religion professor Michael Moreland said of Justice Kennedy’s opinion in Masterpiece Cakeshop.

Ever conscious of the First Amendment and “how people are treated by the government,” Justice Kennedy “wanted to side with the baker here” without weakening “other legal protections for gays and lesbians,” Moreland said. “And the opinion pulls that off.”

The case is Masterpiece Cakeshop Ltd. et al. v. Colorado Civil Rights Commission et al., case number 16-111, in the Supreme Court of the United States.

— Written by Jimmy Hoover; Editing by Brian Baresch and Breda Lund.

Correction: An earlier version of this story misstated Lisa Linsky’s involvement with her firm’s LGBT diversity program. The story has been updated.