Anthony Kennedy Opens New Chapter in American Pluralism
The U.S. Supreme Court decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission read like a legislative roadmap for a new kind of pluralism. In a 7–2 decision, the Court found in favor of the Colorado baker who refused to make a wedding cake for a same-sex couple.
In making its decision the Court erased the penalties Colorado imposed on Jack Phillips in 2012 when he declined to make a cake for Charlie Craig and David Mullins based on his sincerely held religious view that marriage was one man and one woman. Colorado ordered Phillips to undergo “comprehensive staff training,” change his business practices, and file “quarterly compliance reports” for two years because, the civil rights commission believed, Phillips’ view of marriage was “despicable and merely rhetorical,” no different than justifying the Holocaust or slavery.
Writing for the majority, Justice Kennedy latched onto these damning statements, which went unrebutted by the other commissioners. Kennedy found that Colorado violated its constitutional duty to craft and administer laws without “hostility to a religion or religious viewpoint.” The government should never suggest whether religious grounds for “conscience-based objection[s] [are] legitimate or illegitimate.” State officials could have weighed the State’s interest in shielding “gay persons [from] indignities when they seek goods and services in an open market” against Phillips’ “sincere religious objections” in a neutral way, as free exercise guarantees demand. Instead, Colorado engaged in illicit hostility, the Court decided.
Masterpiece’s result should surprise no one. Obergefell itself contained the seeds of respect for Phillips’ views: many “reasonable and sincere people” hold precisely the same view as Phillips.
But for nearly a year, LGBT and religious freedom advocates held their breath, hoping for a dramatic victory. Both have been underwhelmed.
For LGBT and religious freedom advocates alike, there is nothing to see here — no new law is being made, no rights for LGBT persons are jeopardized or created. For that matter, no new rights are being recognized for persons of faith.
For these reasons, many charged that the Court kicked the can down the road. But Justice Kennedy did not leave for another day the face-off between two values Americans hold dear: preventing indignity in the marketplace while taking seriously sincerely held religious beliefs. On the contrary, Justice Kennedy wrote the script for a modern pluralism that allows all people to be true to who they are.
In the U.S., most people are familiar with our Constitution and the Bill of Rights as the foundations of our government. What is less well-known is that the Bill of Rights was a compromise to gain the support of those who had concerns about the strong federal government created by the Constitution. This latter group felt the powers of the federal government needed to be tempered, which the Bill of Rights does by providing protections to the minority and not the majority.
The result of this grand and inspired design is that the U.S. is a richly pluralistic society in which structural forces work to push us toward compromises and solutions. Pluralism does not mean we must or do agree with one another. But it has created a country where for over 200 years we have always figured out how to solve problems, move forward, and get along with one another — despite being the most diverse nation on earth in terms of creed, culture, and views. The U.S. is the land where all we ask is who you want to be, not who are you. And, as Kennedy explains, this pluralism begins with tolerance:
These 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.
No law should treat LGBT persons as “social outcasts or as inferior in dignity and worth.” But neither can the government “act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”
Indeed, both communities can lay claim to protection in law of their dignity and worth. For LGBT persons, “the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights” — protections tragically absent across two-thirds of the land mass in America today. For persons of faith, Kennedy notes, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
Kennedy also paints guardrails around this pluralism. Exceptions to laws cannot be so unbounded — and utilized so often — that they result “in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Otherwise, these exceptions would be no different than “put[ting] 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.”
The key to Kennedy’s conception of pluralism is that no one should be disparaged for who they are and what they believe, whether gay or a person of faith.
Lawmakers should build on and enact Kennedy’s script for tolerance and mutual respect. The worst possible path would be to keep litigating these cases. Instead, our political efforts should be channeled into finding new societal and legislative ways to live together, with everyone having the space to be true to who they are.
Americans are ready for a new chapter in pluralism.
William Eskridge is the John A. Garver Professor of Jurisprudence at Yale Law School. Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law at the University of Illinois College of Law. Their book “Religious Freedom, LGBT Rights and the Prospects for Common Ground” (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press, 2018) [cambridge.org] will be out in the Fall.