The overlooked line that let us know how Justice Kennedy really feels about homophobes

Kennedy warned us that he was sympathetic to anti-gay cake baker Jack Phillips. We just didn't listen.

CREDIT: AP Photo/Evan Vucci
CREDIT: AP Photo/Evan Vucci

There’s an easy-to-forget line in Obergefell v. Hodges, Justice Anthony Kennedy’s landmark opinion declaring marriage equality the law of the land. Opposition to same-sex marriage, Kennedy writes, “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”

Kennedy wrote these words at the beginning of an opinion that handed an historic loss to social conservatives, so it was easy to dismiss it as a throwaway line — some hortatory language intended to ease the pain of individuals Kennedy was about to kick in the gut. Not even opponents of marriage equality appeared to give these lines much significance. During oral arguments Tuesday in Masterpiece Cakeshop v. Colorado Civil Rights Commission, neither of the attorneys defending a baker who refused to serve a same-sex couple focused on Kennedy’s apparent belief that people like that baker are reasonable or sincere.

One day after that argument, however, it is now clear that what seemed to be a throwaway line in Obergefell was nothing of the kind. Kennedy made a profound statement of his core beliefs when he labeled marriage equality’s opponents reasonable and sincere people of good faith. And now Kennedy appears ready to punish LGBTQ people across the nation because a single state official in Colorado does not share his opinion of what is reasonable.

The turning point in Tuesday’s Masterpiece Cakeshop argument came after Kennedy revealed his anger at a Colorado civil rights commissioner who was critical against men or women who use religion to justify discrimination. Kennedy practically demanded that Colorado’s solicitor general “disavow” this commissioner’s statement. He then lectured Colorado’s lawyer that “the state has been neither tolerant or respectful of Mr. Phillips’ religious beliefs.”

Kennedy appears to have interpreted the full statement by Commissioner Diane Rice as intolerant of religion:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others. So that’s just my personal point of view.

The commissioner’s overarching point — that people who engage in discrimination have, at times, cited religion as justification for doing so — is unambiguously true. Indeed, Kennedy’s own Court has confronted this problem on several occasions.

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” a Virginia judge wrote in a 1959 opinion justifying that state’s ban on interracial marriage. “And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

The Supreme Court unanimously rejected this judge’s reasoning in the aptly named case Loving v. Virginia. Like Commissioner Rice, the Supreme Court used to understand that people “use their religion to hurt others.” And when religion is used to justify invidious discrimination, it used to view that practice as “despicable.”

This charitable reading of Rice’s statement only makes sense, however, if you view people who engage in discrimination as bad people — or, at least, if you view discrimination as a bad act. If Jack Phillips was morally wrong to discriminate against gay customers, then it is fair to condemn him for doing so and it is also fair to condemn him for offering up his faith as justification for a wrongful act.

But if you view discrimination against gay customers as a morally neutral act, and believe that people like Jack Phillips are “reasonable and sincere people” who hold their discriminatory views in “good faith” — as Kennedy appears to — then Commissioner Rice’s statement takes on a much darker cast. Now she is looking down on Mr. Phillips’ description of his religious beliefs and labeling them “despicable.” It becomes the equivalent of a state official condemning a Catholic for receiving communion, or condemning a Jew for eating matzo during Passover.

You can see this line of reasoning play out in the way that Phillips’ lawyers represent his case, too.

“Commissioner Rice compared a private citizen who owns a small bakery to slaveholders and Holocaust perpetrators merely for asking that the state respect his right to free speech and free exercise of religion,” Phillips’ lawyers claimed in a 2015 press release. Such a comparison is reasonable if you view Phillips as one of a long line of prejudiced individuals who committed the morally contemptible act of invidious discrimination. But if you just view him as a guy carrying out his religious beliefs, the press release’s condemnation of the comparison makes a lot of sense.

The fact that Kennedy appears to view Phillips’ actions as unworthy of condemnation has profound implications. It suggests that he is not sympathetic to claims that discrimination against LGBTQ individuals is morally or legally similar to discrimination against African Americans, women, or Catholics — Obergefell, it is worth noting, relied largely on the reasoning that the Constitution protects a fundamental right to marry, not that discrimination on the basis of sexual orientation itself violates the Constitution.

But Kennedy’s moral judgement of Phillips also carries a broader warning — that he may be sympathetic to the cultural resentments that helped drive the election of Donald Trump — resentments stemming from a belief that people with traditional views are increasingly dismissed as immoral. Beginning in the 1960s, increasingly large segments of America began to condemn racists as unwelcome in political debates or polite society. Many people with homophobic beliefs now fear that a similar thing is happening to them.

There is a “visceral feeling of being left behind” driving Trump’s popularity among a certain strain of white Americans, Daniel Cox of the Public Religion Research Institute told The Atlantic back when the idea of a Trump presidency still seemed like an impossible nightmare. “Economically they are being left behind, but culturally, too, things that seemed to be O.K. when some of these folks were younger—whether it’s the words you can use or approaches to gender roles—are no longer O.K,” Cox said.

Or consider the words of Robert George, a Princeton professor and probably the leading scholar opposing equal rights for LGBTQ individuals. The goal of marriage equality supporters, George claimed at a Federalist Society event in 2013, is reduce their opponents to the moral “equivalent of racists.”

In the world George fears, people who share his disdain for gay rights are systemically cut out of prestigious jobs. “Why should those who hold bigoted views be allowed to hold faculty positions?” George asked, in an attempt to step into the shoes of his liberal opponents. “Why should they be tolerated in print or broadcast media?” Or in “law firms and the corporate world?” And when opponents of gay rights object to this treatment, they will simply be told “we do not tolerate bigots around here.”

Justice Kennedy appears to share George’s fear. And he seems to believe that the way to prevent a world where racists and homophobes are treated as morally similar is to treat homophobes as morally neutral.

And, if his comments on Tuesday are any indication, Kennedy may be willing to punish LGBTQ Americans as a class if a single government official does not share his opinion of homophobia.