Why Justice Kennedy Exemplifies The Conflict Central To The Masterpiece Cakeshop Case

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Photo: Anthony Kennedy - AP Photo
Supreme Court Associate Justice Anthony Kennedy testifies on Capitol Hill in Washington, Monday, March 23, 2015.

The Supreme Court of the United States could hand down a decision in the Masterpiece Cakeshop case any day now, addressing the tension between state law interpreted by the Colorado Civil Rights Commission, and what baker Jack Phillips sees as an infringement of his First Amendment free speech rights. He refused to bake a wedding cake for a gay couple based on his religious beliefs.

Justice Anthony Kennedy exemplifies that tension seen at the heart of the case. New York Times reporter Adam Liptak has described Kennedy, "at once the court's most prominent defender of gay rights and its most committed supporter of free speech." His vote will also likely swing the decision in either direction.

Liptak talked to Colorado Matters about Kennedy's emblematic position on the court, as well how Colorado's own Justice Neil Gorsuch has influenced SCOTUS so far.

In oral arguments, Kennedy was assertive in his concern for the impact the decision would have on the LGBT community.

"If you prevail, could the bakery put a sign in its window, 'We do not make cakes for gay weddings,'" Kennedy asked the counsel representing Masterpiece Cakeshop. "And you would not posit that an affront to the gay community?"

This isn't out of character for the long-time justice, Liptak said. Kennedy has written the pro-LGBT opinions and dissents for all four of the landmark gay rights cases heard by the Supreme Court: Lawrence v. Texas in 2003, United States v. Windsor and Hollingsworth v. Perry in 2013 and Obergefell v. Hodges in 2015.

"There’s no greater judicial champion of gay rights than Kennedy," Liptak said.

But you can see Kennedy's equal dedication to free speech in his opinion for the Citizens United case.

"He's going to be tugged in different directions," Liptak said. "He is the vote you know you're going to get in every free speech case."

Photo: Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his Lakewood store on March 10, 2014
Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his Lakewood store on March 10, 2014.

The justice was equally vocal in oral arguments about his frustration with the Civil Rights Commission's treatment of baker Jack Phillips.

"Tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs," Kennedy told the counsel for the Civil Rights Commission.

If Kennedy believes strongly enough that the commission didn't give Phillips a fair shot, Liptak says there's a slim chance the justice could vote to send the case back to a lower court. But it's far more likely Kennedy will choose a side.

"If I had to bet -- but this is really a 55-45 kind of bet, it's really close," Liptak said."I think probably the couple wins."

The Supreme Court agreed to hear the Masterpiece case last June. The suit's now six-year history began when David Mullins and Charlie Craig filed a complaint with the Civil Rights Commission after Phillips said he wouldn't make a cake for their 2012 wedding because it went against his religious beliefs. The commission found that Phillips violated the state's state law public accommodation law, and the Colorado Court of Appeals upheld the decision.