This past week, the Supreme Court considered oral arguments in the Masterpiece Cakeshop[1] case. This case is one of the “blockbuster” cases this term for the Supreme Court. It will assess whether the owner of Masterpiece Cakeshop wrongly discriminated against a gay couple when he refused to make a same-sex wedding cake that would be in violation of his faith. This is a very heated case from both sides of the aisle, but this post will try to accomplish a nearly impossible task- try to predict how swing-vote Justice Anthony Kennedy will vote on this monumental case. There are various factors here including his history on the court concerning religious freedom cases.

I will focus this post on 2 major cases concerning religious freedom that Kennedy has been a part of during his tenure, Christian Legal Society[2] and Hobby Lobby[3]. After assessing them I will reach a conclusion and explain what the future may hold for cases in this category as a result.

Christian Legal Society

In Christian Legal Society, the Court assessed whether a campus student organization was in violation of an “All Comers” policy instituted by the school to welcome any student into their respective student group. The organization in question had a policy that did not allow membership to those that were involved in relationships that were in violation of Christian teaching. If the organization did not comply, it would not receive funding.

The Supreme Court held in a 5-4 vote that the school should not be compelled to alter its policy to allow for exclusion based on conduct. Kennedy wrote a concurrence in which he discussed the importance of the minority sentiment, in addition to discriminatory conduct:

“The school’s objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime.”[4]

Here, Justice Kennedy seems to be hinting at the importance of not allowing minority communities to be limited with expressing personal beliefs. While the facts here are different it would not be entirely unreasonable to suggest that Kennedy may use this when considering the cakeshop conflict between the couple and the owner. However, then it becomes a question of whether the enumerated rights of the individual owner to freedom of religion and expression of his beliefs must yield to a customer that is demanding a certain product?

Kennedy’s past seems to suggest a trend towards the couple here, but this can be challenged. Does the couple have the right to demand a product be made for them if it is not a service offered by the owner? There is a distinction between not making products and not serving people that can be unpacked. As long as the pre-existing services are still offered is there really a discriminatory motivation? These are some questions to contemplate.

Hobby Lobby

Next, we turn to the Hobby Lobby case where Justice Kennedy voted with the majority to uphold the right of the closely-held corporation to not be compelled to provide coverage for abortifacients and other contraceptives in violation of their religious beliefs.

He provides a perspective in this opinion that would seemingly take stronger consideration of religious beliefs. He stated in concurrence:

“Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.”[5]

In the early stages, Kennedy suggests religion as a right that has powerful force behind it. Then, he drifts into a discussion about the compelling interests test. In the facts of Hobby Lobby, the government had other alternatives to providing the coverage than forcing the closely-held corporation to provide it. Thus, Kennedy considered this persuasive in ruling for the closely-held corporation.

As applied to the facts of the cakeshop conflict, one must consider the role of government. Does the government have the right to compel a private business to make a certain product? Does it constitute discrimination to not make a product, thus requiring some government intervention?

Concluding Thoughts and a Bit of Obergefell

I do not think these facts line-up with discrimination, but it would not be unreasonable to foresee Kennedy going in the direction of Christian Legal Society because of the nature of the issue of sexual orientation. Kennedy has consistently found himself on the side of support for greater rights for same-sex relationships from Lawrence[6] to Windsor[7] to eventually Obergefell[8].

However, in Obergefell he did offer a bit of a nod to religious interests:

“it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”[9]

There is a question to how far Justice Kennedy would allow this religious interest to extend. Masterpiece will provide the ultimate test to Justice Kennedy and how far he is willing to balance the religious interests to government interests in regards to sexual orientation.

When considering Justice Kennedy’s history on the court regarding matters of religious freedom and sexual orientation, I tend to believe he will vote against the baker in this case. I will disagree with this outcome, but I think it is realistic to consider this possibility. I know some commentators have taken the opposite opinion , but I think they are in error to assume the baker will win.

The best chance for the future of this area in law to take better consideration of religious interests is a narrow holding and persuasive dicta by either Justice Gorsuch, Justice Alito, Justice Thomas or Chief Justice Roberts to allow for the issue to be re-litigated in the future with a different set of facts and new court composition. Overall, this case can be a losing battle in the overall effort, but this conflict is likely to not be resolved in one case and the future may hold a better outcome.

[1] Oral Arguments heard at Supreme Court- December 5, 2017.

[2] 561 U.S. 661 (2011).

[3] 134 S. Ct. 275 (2014).

[4] Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 705

[5] Hobby Lobby, supra note 3 at 2786.

[6] 539 U.S. 558 (2003). Supreme Court overturned Texas statute that banned sodomy.

[7] 133 S. Ct. 2675. (2013) Supreme Court found a right to same-sex relationship inheritance rights.

[8] 135 S. Ct. 2584 (2015). Supreme Court legalized same-sex marriage.

[9] Id. at 2607.