After weeks of build-up in the news cycle, and years of preparation on both sides, the Supreme Court heard oral arguments yesterday in Masterpiece Cakeshop v. Colorado Civil Rights Commission, one of the most important free speech and free exercise cases in 50 years. No one knows how the court will rule, but speculation is a sport in law and politics, and some predictions are surprising.
Most scholars, attorneys, and other interested parties predict Justices Sotomayor, Ginsburg, Breyer, and Kagan will side with the gay couple who sued Masterpiece for refusing to bake a custom wedding cake for their same-sex wedding. Justices Roberts, Alito, Thomas, and Gorsuch will likely side with the Masterpiece owner, Jack Phillips, arguing he has the right to freely express himself via his custom cakes and that no one can compel him to “speak” — particularly as it would violate his conscience to do so. The likely swing vote who will decide the fate of this case is Justice Kennedy.
Since he wrote the opinion in Obergefell v. Hodges, which made same-sex marriage legal nationwide, some assumed Kennedy would side with the gay couple during arguments, via the debate that occurs both between the justices and the attorney, and between the justices themselves -- often their own questions signal to each other which way they are leaning. It’s impossible to know exactly what he’s thinking or what he will decide, but if his questions during oral arguments yesterday are any inclination, he may be more sympathetic to Phillips than previously thought.
First, in two sentences, Kennedy recognized a common leftist talking point about tolerance, turns it around on them, and wonders why the state of Colorado, which ruled with the gay couple, were not tolerant of Phillips’ religious convictions:
JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.
Second, one of the more underrated interactions with Kennedy was when David Cole, the ACLU attorney representing the plaintiffs, argued with him about identity, another huge leftist talking point when it comes to rights of LGBTQ people.
JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly -- suppose he says: Look, I have nothing against -- against gay people. He says but I just don't think they should have a marriage because that's contrary to my beliefs. It's not -
MR. COLE: Yeah.
JUSTICE KENNEDY: It's not their identity; it's what they're doing.
MR. COLE: Yeah.
JUSTICE KENNEDY: I think it's -- your identity thing is just too facile.
As David French, at National Review observed, “A person’s actions are not the same thing as a person’s identity. Phillips never, ever, discriminated on the basis of identity. He merely refused to use his talents to support actions and messages he believes to be immoral. Justice Kennedy gets the key distinction in this case.”
Again, there’s obviously no final decision on this case yet, but Kennedy’s comments, which appeared to side somewhat with the baker's argument on free speech and free exercise, upset progressives. Here, an editor at ThinkProgress tweets, following the arguments yesterday:
Justice Kennedy was never our friend. He’s a chaos monkey who tosses out gumdrops and hand grenades. And too many of us got the false impression that he's a good guy because he gave us a few gumdrops.— Ian Millhiser (@imillhiser) December 5, 2017
Hopefully this means Kennedy will side with the more “conservative” justices, and uphold Phillips’ right of free speech and free exercise.
Nicole Russell is a contributor to the Washington Examiner's Beltway Confidential blog. She is a journalist in Washington, D.C., who previously worked in Republican politics in Minnesota. She was the 2010 recipient of the American Spectator's Young Journalist Award.
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