Justice Kennedy’s Too-Late Lament for Tolerance

I have been silent about Masterpiece Cakeshop v. Colorado Civil Rights Commission, not because I lack interest in the case, but because it has already generated extensive commentary here and throughout the commentariat. Court watchers, like fortune tellers reading tea leaves, speculate how the justices will line up, with Justice Anthony Kennedy likely casting the swing vote in favor or against the Colorado baker, Jack Phillips, who declined for religious reasons to create a gay wedding cake.

Which side will win? Flip a coin. It is notoriously difficult to predict with which four-justice bloc the mercurial Kennedy will align himself in any particular case, although it is almost certain that he will be in the majority.

Two things prompt me to weigh in: Justice Kennedy’s odd comments at oral argument, and a recent visit my wife and I took to southern Utah (about which later).

The December 5 oral argument got my attention when Kennedy sharply questioned Colorado Solicitor General Frederick Yarger about a statement made by a member of the state agency that ruled in favor of the same-sex couple who filed the discrimination complaint against Phillips. Kennedy demanded to know whether Yarger “disavowed or disapproved of” the statement by Commissioner Diann Rice that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.”

Kennedy followed up with the widely reported comment that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.” Apparently referring to Rice’s “despicable” statement, Kennedy continued: “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” It’s an odd comment because Kennedy has done more than any other justice to marginalize Americans’ moral and religious objections to homosexuality. Kennedy’s stated concern about intolerance towards Christians who oppose same-sex marriage rings hollow.

Does Kennedy Remember His Own Opinions?
In Romer v. Evans (1996), Kennedy authored a 6-3 opinion striking down an amendment to Colorado’s state constitution (enacted by the voters as an initiative dubbed “Amendment 2”), which would have prevented local governments from recognizing LGBT orientation as a “protected class.” Any such protections would have to be granted by state law. Led by Kennedy, the majority in Romer held that the voters’ denial of local control over sexual orientation discrimination lacked a rational basis.

Kennedy’s opinion held that “the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Opposition to locally-granted homosexual rights, in other words, is irrational: arbitrary, baseless, unworthy of respect. Moral disapproval is the same as naked “animus.”

Kennedy rejected the contention that Colorado voters were justified in denying local governments the ability to grant special rights to homosexuals:

The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. (Emphasis added.)

In dissent, Justice Antonin Scalia accused the majority of mistaking “a Kulturkampf for a fit of spite,” and chastised his colleagues for imposing their elite views on “seemingly tolerant Coloradans” by prohibiting the voters’ “modest attempt…to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”

Romer was the first step in the long road to Obergefell, every step of which was paved with Kennedy’s smug disdain for bourgeois morality.

‘Due Process’ Clause as Cudgel
The next step came in
Lawrence v. Texas (2003), where the court, in another 6-3 opinion written by Kennedy, overturned Bowers v. Hardwick (1986) and recognized a fundamental due process right to engage in homosexual sodomy, declaring a Texas statute unconstitutional in the process. The court acknowledged, but ultimately disregarded, the traditional condemnation of homosexual conduct as immoral, based on “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family,” which “[f]or many persons… are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.”

Nevertheless, Kennedy’s opinion concluded, society’s majoritarian belief that a particular practice is immoral is not a sufficient basis to uphold a law prohibiting that practice. Rather, despite any specific constitutional protection, consenting adults “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” (Emphasis added.)

Scalia’s dissent in Lawrence vigorously disputed the majority’s disregard of conventional morality as a basis for lawmaking:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” [quoting Bowers]—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion . . . This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. (Emphasis in original.)

Many observers concluded that recognition of a right to same-sex marriage was inevitable after Lawrence, as indeed it was 12 years later by a 5-4 vote in Obergefell v. Hodges (2015), when—in yet another Kennedy opinion—millennia of Judeo-Christian norms were overruled by judicial fiat, what Scalia in dissent termed a “Putsch.” The notion that marriage is a union between one man and one woman—a view that Kennedy conceded “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world,” was trumped by five unelected justices’ mystical insights into what the invisible ink of the Constitution requires to ensure “individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Whatever that means.

The invented “right” to same-sex marriage is now in direct conflict with Jack Phillips’ real First Amendment rights, a predictable dilemma that was anticipated in Chief Justice John Roberts’ dissent in Obergefell. Justice Samuel Alito’s separate dissent foresaw that the majority’s opinion “will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women…. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.” Thus, Commissioner Rice’s “despicable” statement was a logical reaction to Kennedy’s jurisprudential handiwork. You reap what you sow.

What Does Polygamy Have to Do With It?
Which brings me to my recent visit to southern Utah. Scalia’s
Lawrence dissent didn’t mention polygamy, but it might have. Polygamy—usually understood as consisting of a man taking multiple wives—is common in some cultures, but has always been outlawed in the United States. Currently, all 50 states have laws forbidding the practice.

Yet, prior to the Mormon church’s renunciation of “plural marriage” in 1890, polygamy was openly practiced by church adherents in what was then the Utah Territory. To this day, fundamentalist offshoots of the LDS church, and other fringe sects, continue to practice polygamy, primarily in parts of Utah and Arizona. It is estimated that 30,000 people live in polygamous communities in Utah; my wife and I saw some, who dress in distinctive Amish-style clothing, while we were in Panquitch, Utah.

Due to Americans’ abhorrence of polygamy, which was regarded as a relic of barbarism, Utah was denied statehood until 1896, after the Mormon church renounced the practice and the proposed state constitution banned the practice. The nation’s ban on polygamy is based on moral disapproval, just as were the prohibitions of homosexual sodomy and same-sex marriage overturned in Lawrence and Obergefell.

Many “consenting adults” living in Utah and Arizona are now denied legal recognition for their plural marriages, just as gay couples were denied legal status prior to 2015. On what principled basis would the majority in Obergefell refuse to extend the newly-minted right of non-traditional marriage to polygamous celebrants?
Kennedy undoubtedly regards his odyssey from Romer to Obergefell as an exemplar of tolerance, but it was actually an assault on the Constitution, democracy, and traditional moral values—producing not justice, but only chaos and incoherence.

If Obergefell has weaponized anti-religious bigotry, Kennedy has no one but himself to blame.

Editor’s note: This story has been corrected to attribute the disputed quotation to Commissioner Diann Rice.

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