At Tuesday’s oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission, one benign statement from one of those Colorado commissioners seemed to have triggered several of the Supreme Court justices, including Justice Anthony Kennedy, the key swing vote. The nature of this statement gets to the question at the very core of the case: Is it immoral to refuse to recognize a same-sex couple’s marriage?
“It seems to me the state has been neither tolerant or respectful,” Kennedy said of the Commission’s ruling that the baker Jack Phillips had violated state law by refusing to sell a wedding cake to a same-sex couple. At one point, he asked the Commission’s lawyer to repudiate a statement one of the commissioners, Diann Rice, had made calling it “despicable” to justify discrimination in the name of the religion.
Kennedy went on to imply that he felt the comment demonstrated “hostility to religion.”
Here’s the full statement that Commissioner Rice made during the 2014 hearing on Phillips’ case:
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.
But that’s not how Phillips’ lawyers and supporters interpreted it. “Revealed: Colo. commissioner compared cake artist to Nazi,” the Alliance Defending Freedom (ADF) announced in a 2015 press release, completely mischaracterizing what Rice had said. ADF notably also took exception with her insistence that “sexual orientation is a status absolutely like race.”
Three months ago, the Heritage Foundation’s Daily Signal took this ridiculous “Nazi” characterization and ran with it, publishing a fully produced video, complete with interviews of Phillips reacting to the comparison that was never made. He talks about his dad fighting in World War II, he reads through his dad’s personal notes condemning Nazis in a World War II history book, and he visits his dad’s grave at a cemetery near his bakery storefront.
“My situation has nothing to do with the Nazis,” Phillips pleads in the video. “It has nothing to do with racism. I want to run my bakery in a way that everybody who comes in is welcome.”
In its amicus brief, the Liberty Counsel, another anti-LGBTQ hate group known for defending Kentucky county clerk Kim Davis, literally put the words in Kennedy’s mouth. “Any doubt about the underlying hostility of the CRC to the religious beliefs of Petitioners is erased by the comments of one of the commission members,” the brief said.
Of course, the whole point of the case is that Phillips does not run a shop where everybody is welcome. A same-sex couple cannot purchase the same wedding cakes that are available to different-sex couples.
Moreover, there’s nothing inaccurate about Rice’s comment. It is factually true that religion has been used to justify many atrocities throughout the ages, including both slavery and the Holocaust. The Southern Baptist Convention, now the largest Christian denomination in the United States, formed by separating from northern Baptists expressly because of its support for slavery. And Adolf Hitler enjoyed strong support from the Protestant Christian community in Germany as he rose to power.
The use of religion to justify injustice can also be seen in the modern U.S. court system. Though the Supreme Court ultimately ruled against bans on interracial marriage in the 1967 case Loving v. Virginia, the first judge that heard the case ruled against the couple’s marriage. In his 1965 opinion, he wrote, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents,” he wrote. “And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.”
Around the same time, the Supreme Court heard the case Newman v. Piggie Park, which involved a restaurant owner who claimed he couldn’t serve black customers, as the law demanded, because he believed the Civil Rights Act “contravenes the will of God.” It was an almost identical case to Masterpiece Cakeshop. In its 1968 ruling, the Supreme Court unanimously ruled against the owner, calling his religious claim “patently frivolous.”
The reaction Kennedy had seems to indicate that, despite his consistent history of ruling in favor of gay rights and unlike the 1968 Court, he is still very sensitive to the concerns of people who oppose marriage equality and seek to treat same-sex couples differently. In Obergefell v. Hodges, 2015’s landmark marriage equality decision, Kennedy made this perspective clear. “This view long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world,” he wrote, emphasizing that they “may continue to advocate” that “same-sex marriage should not be condoned.”
But he also wrote that if enacted into law, “sincere, personal opposition” soon “demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.” He ruled that the laws banning same-sex couples from marrying “are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”
Kennedy, for whatever reason, is clearly offended by Rice’s remarks. The question is whether it drives him to compromise his own previous ruling to carve out room for the baker to discriminate.