Kennedy v Thomas, on the First Amendment


One can only wonder why Chief Justice Roberts chose Justice Kennedy to write the majority of pinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Perhaps it was  because Kennedy wrote the majority opinion in  Obergefell v. Hodges, which established a constitutional right for gays to marry? 

This decision upended what has been the natural order for a very long time. As The New Scientist put it: “We can … assume that Neanderthals had some form of marriage because pair-bonding between men and women … had been a feature of hominin social life for over a million years.”

But I digress.

Of course, the majority opinion reflects the consensus of the majority of the Court, but the writer puts his or her own stamp on it, and the majority opinion is the controlling opinion for the ruling. 

The majority apparently agreed to find for the cake maker, Jack Phillips because one member of the state commission had denigrated Mr. Phillips’s religion, comparing it to justifying the Holocaust or slavery. 

Kennedy wrote that:

The freedoms asserted here [by Phillips] are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech.

(We’ll learn what Justice Thomas says on this point, later.)

Kennedy went on to say that:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.
That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.
Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

He does not opine on what Phillips’s First Amendment rights were, except to quote his own statement from Obergefell, which, IMO, greatly (and intentionally) diminished religious rights under the First Amendment and promised unending lawfare against those who refuse to kneel to the new, contrarian “religion”:

“[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

The First Amendment says you have the right to “free exercise of your religion,” not to teach it.

No doubt about Thomas’s loyalty to the First Amendment 

Justice Thomas agreed that the Commission’s decision violated Phillips’s right to free exercise because it jwas openly hostile to his religion, but he added what the majority should have said:

While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. 
The court described his conduct as a refusal to “design and create a cake to celebrate [a] same-sex wedding.” Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech. 
It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. 
This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.
Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law “ha[s] the effect of declaring . . . speech itself to be the public accommodation,” the First Amendment applies with full force. [Irish- American Gay, Lesbian and Bisexual Group of Boston, Inc.]
In Hurley, for example, a Massachusetts public-accommodations law prohibited “‘any distinction, discrimination or restriction on account of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation.’”
When this law required the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor’s right to free speech.
While this Court acknowledged that the unit’s exclusion might have been “misguided, or even hurtful,” ibid., it rejected the notion that governments can mandate “thoughts and statements acceptable to some groups or, indeed, all people” as the “antithesis” of free speech.

Thomas explained, “the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.”

To determine whether conduct is [expression], the Court asks whether it was “intended to be communicative” and, “in context, would reasonably be understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence.
Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it.

In other words, the government cannot make you say something you don’t believe in. Can a wedding cake be a statement, or is it just a pile of pastry? Thomas writes:

Phillips … sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that “a wedding has occurred, a marriage has begun and the couple should be celebrated.” App. 162.

He’s not alone in this. Thomas continues:

Wedding cakes do, in fact, communicate this message. If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding…. Almost no wedding, no matter how spartan, is missing the cake…. The cake’s purpose is to mark the beginning of a new marriage and to celebrate the couple. 
Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

Much has been said about offending the dignity of same-sex couples (and offending an endlessly expanding list of others). But nothing about offending religious Christians. The next time some annoying gnat on Fox News complains about being offended, remember that Justice Thomas said this:

States cannot punish protected speech because some group finds it and offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. A contrary rule would allow the government to stamp out virtually any speech at will. 
Phillips told the couple, “‘I’ll make your birthday cakes, shower cakes, sell you cookies and brown­ies, I just don’t make cakes for same sex weddings.’”
It is … hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black, 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992); or circulate a film featur­ing hooded Klan members who were brandishing weapons and threatening to “‘Bury the niggers,’” Brandenburg v. Ohio, 395 U. S. 444, 446, n. 1 (1969) (per curiam).

He also warns (again) of a witch hunt for those who disagree with the path our society has taken:

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ This case proves that the conflict has already emerged.
Because the Court’s decision vindicates Phillips’s right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

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