Kennedy keeps eye toward legacy in same-sex wedding cake case

By Joan Biskupic, CNN legal analyst & Supreme Court biographer
Published 3:09 PM EDT, Mon June 4, 2018
01:40 - Source: CNN
Supreme Court sides with baker in cake case
CNN  — 

Supreme Court Justice Anthony Kennedy tried to make clear on Monday that he was not retreating from his landmark 2015 decision allowing same-sex marriage nationwide, while he sided with a Colorado baker who refused to create a wedding cake for two gay men.

Slowly reading excerpts of his ruling from the court’s bench, the bespectacled 81-year-old justice first emphasized the importance of protecting the rights and dignity of gay persons who want to marry.

“Gay couples cannot be treated as social outcasts,” said Kennedy, who has been the author of every Supreme Court gay rights ruling since 1996, including the decisive 5-4 ruling in Obergefell v. Hodges three years ago, which opened the door to gay marriage across America.

But Kennedy, cautiously balancing two tenets, stressed that a second principle must also be respected: freedom of religion. In this situation, he said in the 7-2 decision, religion was not.

This was the first major gay-rights case to reach the court since 2015, and an overriding question was how Kennedy, a centrist conservative, would address the competing values. The importance of his voice in this area cannot be overstated. For more than two decades, Kennedy has provided key votes and penned the legal rationale for gay rights.

In recent years Kennedy has pondered retirement – and there is currently no clear signal of his plans. Any assessment of his legacy would focus, in good measure, on his opinions highlighting the dignity of gay people. He appeared to take care to preserve that emphasis on Monday, even as he ruled against two gay men.

Kennedy said the Colorado Civil Rights Commission, which had sanctioned Christian baker Jack Phillips for discrimination, revealed “a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection” to creating the cake for Charlie Craig and Dave Mullins.

Kennedy observed that a commissioner had disparaged Phillips by asserting that religion has been used to justify slavery and the Holocaust. The commissioner also described a person’s faith as “one of the most despicable pieces of rhetoric that people can use” to hurt others.

“This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law – a law that protects discrimination on the basis of religion as well as sexual orientation.”

Anthony Kennedy, the longest-serving member of the current Supreme Court, <a href="https://www.cnn.com/2018/06/27/politics/anthony-kennedy-retires/index.html" target="_blank">has announced that he will be retiring</a> at the end of July. Kennedy, 81, was appointed by President Ronald Reagan in 1988. He is a conservative justice but has provided crucial swing votes in many cases.
Photos: Supreme Court Justice Anthony Kennedy
Eric Thayer/Getty Images
Anthony Kennedy, the longest-serving member of the current Supreme Court, has announced that he will be retiring at the end of July. Kennedy, 81, was appointed by President Ronald Reagan in 1988. He is a conservative justice but has provided crucial swing votes in many cases.
Kennedy was born in Sacramento, California, on July 23, 1936. In this photo, circa 1939, he sits between his mother, Gladys, and his sister, Nancy.
Photos: Supreme Court Justice Anthony Kennedy
Courtesy of Dana Smith
Kennedy was born in Sacramento, California, on July 23, 1936. In this photo, circa 1939, he sits between his mother, Gladys, and his sister, Nancy.
Kennedy wears his Cub Scout uniform as he poses with his brother, Tim, circa 1946.
Photos: Supreme Court Justice Anthony Kennedy
Courtesy U.S. Supreme Court
Kennedy wears his Cub Scout uniform as he poses with his brother, Tim, circa 1946.
Kennedy, third from right in the front row, stands with other Cub Scouts in the 1940s.
Photos: Supreme Court Justice Anthony Kennedy
Sacramento Bee/ZUMAPRESS
Kennedy, third from right in the front row, stands with other Cub Scouts in the 1940s.
Kennedy, right, spent time with the California Army National Guard after finishing law school in 1961. The man on the left, John J. Hamlyn Jr., also became a lawyer like Kennedy.
Photos: Supreme Court Justice Anthony Kennedy
Sacremento Bee/Zumapress
Kennedy, right, spent time with the California Army National Guard after finishing law school in 1961. The man on the left, John J. Hamlyn Jr., also became a lawyer like Kennedy.
Kennedy, right, and Hamlyn pose for a photo after basic training.
Photos: Supreme Court Justice Anthony Kennedy
Sacramento Bee/ZUMAPRESS
Kennedy, right, and Hamlyn pose for a photo after basic training.
After more than a decade as a lawyer, Kennedy became a judge on the US Court of Appeals in 1975. He was nominated by President Gerald Ford on the recommendation of California Gov. Ronald Reagan.
Photos: Supreme Court Justice Anthony Kennedy
Owen Brewer/Sacramento Bee/Zumapress
After more than a decade as a lawyer, Kennedy became a judge on the US Court of Appeals in 1975. He was nominated by President Gerald Ford on the recommendation of California Gov. Ronald Reagan.
This courtroom photo of Kennedy was taken in 1976.
Photos: Supreme Court Justice Anthony Kennedy
Courtesy of McGeorge School of Law
This courtroom photo of Kennedy was taken in 1976.
Kennedy has breakfast with his wife, Mary, and his son Gregory in 1984.
Photos: Supreme Court Justice Anthony Kennedy
Frank Stork/Sacramento Bee/ZUMAPRESS
Kennedy has breakfast with his wife, Mary, and his son Gregory in 1984.
Kennedy and his wife walk together in Sacramento, California, in 1987.
Photos: Supreme Court Justice Anthony Kennedy
Dick Schmidt/Sacramento Bee via ZUMA Wire/ZUMAPRESS
Kennedy and his wife walk together in Sacramento, California, in 1987.
From 1965 to 1988, Kennedy was also a professor of constitutional law at the University of the Pacific's McGeorge School of Law.
Photos: Supreme Court Justice Anthony Kennedy
Frank Stork/Sacramento Bee/ZUMAPRESS
From 1965 to 1988, Kennedy was also a professor of constitutional law at the University of the Pacific's McGeorge School of Law.
In 1987, Kennedy was nominated by President Reagan to fill the Supreme Court seat vacated by Lewis Powell's retirement. The nomination came after the confirmation failures of nominees Robert Bork and Douglas Ginsburg.
Photos: Supreme Court Justice Anthony Kennedy
Getty Images
In 1987, Kennedy was nominated by President Reagan to fill the Supreme Court seat vacated by Lewis Powell's retirement. The nomination came after the confirmation failures of nominees Robert Bork and Douglas Ginsburg.
Kennedy, center, talks with US Sens. Ted Kennedy, left, and Joe Biden before a confirmation hearing in Washington. The two Kennedys are not related.
Photos: Supreme Court Justice Anthony Kennedy
Doug Mills/AP
Kennedy, center, talks with US Sens. Ted Kennedy, left, and Joe Biden before a confirmation hearing in Washington. The two Kennedys are not related.
Kennedy meets with President Reagan in the Oval Office.
Photos: Supreme Court Justice Anthony Kennedy
White House Photo
Kennedy meets with President Reagan in the Oval Office.
Kennedy is joined by his wife as he is sworn in by Chief Justice William Rehnquist on February 18, 1988. Reagan is on the right.
Photos: Supreme Court Justice Anthony Kennedy
Bettmann/Getty Images
Kennedy is joined by his wife as he is sworn in by Chief Justice William Rehnquist on February 18, 1988. Reagan is on the right.
Kennedy, top right, appears in a formal Supreme Court portrait in April 1988. In the front row, from left, are Thurgood Marshall, William Brennan Jr., Chief Justice William Rehnquist, Byron White and and Harry Blackmun. In the back row, from left, are Antonin Scalia, John Paul Stevens, Sandra Day O'Connor and Kennedy.
Photos: Supreme Court Justice Anthony Kennedy
Bob Daugherty/AP
Kennedy, top right, appears in a formal Supreme Court portrait in April 1988. In the front row, from left, are Thurgood Marshall, William Brennan Jr., Chief Justice William Rehnquist, Byron White and and Harry Blackmun. In the back row, from left, are Antonin Scalia, John Paul Stevens, Sandra Day O'Connor and Kennedy.
Kennedy speaks at the McGeorge School of Law in 1991. He delivered the inaugural address in a lecture series named for the late Archie Hefner, whose portrait is behind Kennedy. Hefner was a prominent Sacramento attorney active in numerous civic and charitable groups. He died in 1988.
Photos: Supreme Court Justice Anthony Kennedy
Owen Brewer/Sacramento Bee/Zumapress
Kennedy speaks at the McGeorge School of Law in 1991. He delivered the inaugural address in a lecture series named for the late Archie Hefner, whose portrait is behind Kennedy. Hefner was a prominent Sacramento attorney active in numerous civic and charitable groups. He died in 1988.
Kennedy is on the far right in this Supreme Court portrait from 1998. In the front row, from left, are Antonin Scalia, John Paul Stevens, Chief Justice William Rehnquist, Sandra Day O'Connor and Kennedy. In the back row, from left, are Ruth Bader Ginsburg, David Souter, Clarence Thomas and Stephen Breyer.
Photos: Supreme Court Justice Anthony Kennedy
AFP/Getty Images
Kennedy is on the far right in this Supreme Court portrait from 1998. In the front row, from left, are Antonin Scalia, John Paul Stevens, Chief Justice William Rehnquist, Sandra Day O'Connor and Kennedy. In the back row, from left, are Ruth Bader Ginsburg, David Souter, Clarence Thomas and Stephen Breyer.
In 2004, Kennedy speaks to high school students at the Ronald Reagan Presidential Library in Simi Valley, California.
Photos: Supreme Court Justice Anthony Kennedy
DAVE GETZSCHMAN/AP
In 2004, Kennedy speaks to high school students at the Ronald Reagan Presidential Library in Simi Valley, California.
Kennedy speaks during a Senate subcommittee hearing in 2002.
Photos: Supreme Court Justice Anthony Kennedy
Mark F. Sypher/CQ-Roll Call Group/Getty Images
Kennedy speaks during a Senate subcommittee hearing in 2002.
Kennedy discusses the court's budget requests with a House committee in April 2005.
Photos: Supreme Court Justice Anthony Kennedy
Win McNamee/Getty Images
Kennedy discusses the court's budget requests with a House committee in April 2005.
Kennedy participates in a panel discussion in Washington in November 2005.
Photos: Supreme Court Justice Anthony Kennedy
David Scull/Bloomberg/Getty Images
Kennedy participates in a panel discussion in Washington in November 2005.
Kennedy receives an honorary degree at New York University in May 2006.
Photos: Supreme Court Justice Anthony Kennedy
TIMOTHY A. CLARY/AFP/Getty Images
Kennedy receives an honorary degree at New York University in May 2006.
Kennedy delivers the commencement address at New York University.
Photos: Supreme Court Justice Anthony Kennedy
MARILYNN K. YEE/New York Times/Redux
Kennedy delivers the commencement address at New York University.
In February 2007, Kennedy testifies at a Senate committee hearing on judicial security and independence.
Photos: Supreme Court Justice Anthony Kennedy
Ken Cedeno/Bloomberg/Getty Images
In February 2007, Kennedy testifies at a Senate committee hearing on judicial security and independence.
Kennedy testifies before a House subcommittee in March 2007. He and fellow Justice Clarence Thomas spoke about concerns with the ongoing remodeling of the court building, the reduction of paperwork due to electronic media, and the disparity of pay between federal judges and lawyers working in the private sector.
Photos: Supreme Court Justice Anthony Kennedy
Chip Somodevilla/Getty Images
Kennedy testifies before a House subcommittee in March 2007. He and fellow Justice Clarence Thomas spoke about concerns with the ongoing remodeling of the court building, the reduction of paperwork due to electronic media, and the disparity of pay between federal judges and lawyers working in the private sector.
The Supreme Court meets with President Barack Obama and Vice President Joe Biden in September 2009. From left are Samuel Alito, Ruth Bader Ginsburg, Kennedy, John Paul Stevens, Chief Justice John Roberts, Obama, Sonia Sotomayor, Biden, Antonin Scalia, Clarence Thomas, Stephen Breyer and retired Justice David Souter.
Photos: Supreme Court Justice Anthony Kennedy
The White House/Getty Images
The Supreme Court meets with President Barack Obama and Vice President Joe Biden in September 2009. From left are Samuel Alito, Ruth Bader Ginsburg, Kennedy, John Paul Stevens, Chief Justice John Roberts, Obama, Sonia Sotomayor, Biden, Antonin Scalia, Clarence Thomas, Stephen Breyer and retired Justice David Souter.
Kennedy leaves after a Catholic Mass in Washington in October 2009.
Photos: Supreme Court Justice Anthony Kennedy
Jose Luis Magana/AP
Kennedy leaves after a Catholic Mass in Washington in October 2009.
Kennedy joins the President and other officials at a memorial for the victims of a shooting in Tucson, Arizona, in 2011.
Photos: Supreme Court Justice Anthony Kennedy
DOUG MILLS/The New York Times/Redux
Kennedy joins the President and other officials at a memorial for the victims of a shooting in Tucson, Arizona, in 2011.
Kennedy smiles as he is introduced to faculty members at the University of Pennsylvania Law School in October 2013. Kennedy was teaching there for a week.
Photos: Supreme Court Justice Anthony Kennedy
Matt Slocum/AP
Kennedy smiles as he is introduced to faculty members at the University of Pennsylvania Law School in October 2013. Kennedy was teaching there for a week.
Kennedy is saluted by sailors as he tours the USS John C. Stennis in 2015.
Photos: Supreme Court Justice Anthony Kennedy
Smith Collection/Gado/Getty Images
Kennedy is saluted by sailors as he tours the USS John C. Stennis in 2015.
Kennedy testifies about a Supreme Court budget request during a House subcommittee meeting in 2015.
Photos: Supreme Court Justice Anthony Kennedy
Manuel Balce Ceneta/AP
Kennedy testifies about a Supreme Court budget request during a House subcommittee meeting in 2015.
President Obama greets Kennedy and other Supreme Court justices before his final State of the Union address in January 2016.
Photos: Supreme Court Justice Anthony Kennedy
Stephen Crowley/The New York Times/Redux
President Obama greets Kennedy and other Supreme Court justices before his final State of the Union address in January 2016.
Kennedy, second from left, joins other Supreme Court justices in February 2017 during President Donald Trump's first address to a joint session of Congress.
Photos: Supreme Court Justice Anthony Kennedy
Jim Lo Scalzo/EPA/Redux/
Kennedy, second from left, joins other Supreme Court justices in February 2017 during President Donald Trump's first address to a joint session of Congress.
As President Trump looks on, Kennedy administers the judicial oath to new Justice Neil Gorsuch in April 2017.
Photos: Supreme Court Justice Anthony Kennedy
Eric Thayer/Getty Images
As President Trump looks on, Kennedy administers the judicial oath to new Justice Neil Gorsuch in April 2017.
Kennedy and Trump walk together after Gorsuch's swearing-in ceremony.
Photos: Supreme Court Justice Anthony Kennedy
Jim Lo Scalzo/EPA/Redux
Kennedy and Trump walk together after Gorsuch's swearing-in ceremony.
Trump stands with the Supreme Court at Gorsuch's formal investiture ceremony in June 2017. From left are Elena Kagan, Samuel Alito, Ruth Bader Ginsburg, Kennedy, Chief Justice John Roberts, Trump, Gorsuch, Clarence Thomas, Stephen Breyer and Sonia Sotomayor.
Photos: Supreme Court Justice Anthony Kennedy
Fred Schilling, Collection of the Supreme Court of the United States
Trump stands with the Supreme Court at Gorsuch's formal investiture ceremony in June 2017. From left are Elena Kagan, Samuel Alito, Ruth Bader Ginsburg, Kennedy, Chief Justice John Roberts, Trump, Gorsuch, Clarence Thomas, Stephen Breyer and Sonia Sotomayor.
Several members of the Supreme Court pose for a portrait before taking part in a procession to mark Harvard Law School's bicentennial in October 2017. On the top row, from left, are Kennedy, Roberts, Breyer and Gorsuch. In front of them are Kagan and retired Supreme Court Justice David Souter.
Photos: Supreme Court Justice Anthony Kennedy
Jessica Rinaldi/The Boston Globe via Getty Images
Several members of the Supreme Court pose for a portrait before taking part in a procession to mark Harvard Law School's bicentennial in October 2017. On the top row, from left, are Kennedy, Roberts, Breyer and Gorsuch. In front of them are Kagan and retired Supreme Court Justice David Souter.

Yet, even with abundant criticism for the commission, Kennedy said that any decision favoring Phillips “would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

As he concluded his 18-page opinion, Kennedy warned against “subjecting gay persons to indignities when they seek goods and services in an open market.”

In her dissenting opinion, Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, echoed such sentiment and said she agreed with much of what Kennedy had written.

In the end, however, she said the delicate balance should have tipped to the side of Craig and Mullins.

“What matters,” Ginsburg wrote, “is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”