Justice Kennedy’s Retirement, Part 2
On Friday, we talked about how Justice Kennedy’s retirement might shape the future of abortion in America. And another issue could be dramatically affected as well. With the retirement of Anthony Kennedy from the U.S. Supreme Court, we’re as close to legally overturning Roe as we’ve ever been. But another issue of great concern to Christians could also be affected by a change in the Court’s composition: that’s religious freedom. To understand, let’s briefly revisit the Supreme Court’s recent decision in the Masterpiece Cakeshop case. At oral arguments in December, the Alliance Defending Freedom’s Kristen Waggoner emphasized that Jack Phillips’ right to free speech was central to the case. She told the Court that “the First Amendment protects bakers such as Mr. Phillips against being forced to express any belief.” The central argument is that Phillips’ custom cakes, with his use of writing, designs, and symbols, convey a message in a way that a cake off the shelf does not. This prompted a spirited discussion between the justices and the attorneys. But that discussion was all but ignored in Kennedy’s majority opinion, since the Colorado Civil Rights Commission had displayed such unacceptable bias and had expressed such vitriol towards him and his religiously-based views. Now, we can’t be sure, but given Kennedy’s record on LGBT issues, it’s possible that Phillips may not have prevailed on a Court in which Kennedy was the deciding vote on the free speech issue. It was Kennedy, after all, who created that constitutional so-called “right to dignity” that made Obergefell possible in the first place. But come next term, it will be a different court. And to illustrate how this might change things, let’s consider Barronelle Stutzman, the Washington florist. Last week, the Supreme Court remanded her case back to the Supreme Court of Washington for further consideration in light of the Masterpiece decision. The most likely outcome is that the Washington Court will look at the record and conclude there is no evidence of the sort of animus that caused Kennedy to side with Jack Phillips. They may very well affirm their own original ruling. If Kennedy were still on the court, that would be it. But not anymore. If the Washington court does the expected, Stutzman can appeal the case to a potentially different Supreme Court. Kristen Waggoner, who’s representing Stutzman, could once again maker her argument before a court that may have a five-vote majority for ADF’s free speech claim. Is it a sure thing? Of course not. But I like Stutzman’s chances a lot more today than I did last week. And another issue likely to come before a newly-constituted Court is the one I told you about last Thursday, the attempt to judicially rewrite Title VII of the Civil Rights Act of 1964. Title VII makes no mention of sexual orientation, so LGBT activists argue that “sexual orientation” is included in the word “sex.” What’s worse is they’ve persuaded the Seventh and Second Courts of Appeal to agree with them. If their gambit succeeds they’ll impose a law barring “discrimination” on the basis of sexual orientation or gender identity on the twenty-nine states where none exists. And most likely, other federal laws that ban discrimination on the basis of sex, like Title IX, which covers education, will be interpreted in a similar fashion. The only thing standing between us and this kind of judicial tyranny is a Supreme Court that will put an end to this usurpation. Again, there are no guarantees, but I am more hopeful about our chances this week than I was last week. If the President keeps his promises, Kennedy’s successor is unlikely to buy into this interpretive sleight-of-hand. Of course, the most the Court can provide for us is breathing room so that we can practice our faith and share it with others. But breathing room is better than a suffocating legal system, and for that I’m grateful. And by the way, on today’s podcast, I talk to Kristen Waggoner and Barronelle Stutzman. Come to BreakPoint.org to listen.