Justice Kennedy delivers his swan song in June at the end of the U.S. Supreme Court term

July/August 2018

Kennedy’s final actions make it clear that, in his mind, government MAY NOT compel speech. In include a trio of cases, and powerful concurring opinion, Kennedy takes his stand on the First Amendment and the speech it protects.

U.S. Supreme Court Justice Anthony M. Kennedy announced his retirement on June 27 effective July 31, 2018. Confirmed to the Court in February 1988, the 81-year-old had served thirty years on the Court.

For many years, especially since the retirement of Justice Sandra Day O’Connor in 2006, Kennedy was the swing vote on a number of hot-button issues to come before the nine-member Court.

After the Senate rejected Robert Bork and Douglas Ginsburg withdrew his nomination, President Ronald Reagan chose Kennedy. He was generally viewed as a consensus pick and Senator Grassley (R-IA) described him as a “basic compromise of principle.”

Kennedy often disappointed conservatives on social issues such as abortion and same-sex marriage. In addition, he sided with the four more liberal justices on a number of other issues such as fair housing, death penalty and redistricting.

But before his retirement, Kennedy made sure to leave a powerful Swan Song—a trio of cases and a powerful concurring opinion making clear that the government can not show hostility towards religion or compel someone to say something they don’t want to say.

Masterpiece Cakeshop v. Colorado Civil Rights Commission (June 4, 2018)

In a 7-2 opinion, written by Justice Kennedy, the U.S. Supreme Court declared that Colorado’s Civil Rights Commission treated Masterpiece Cakeshop with “a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

Citing precedent, the Court made it clear that “the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.”

NIFLA v. Becerra (June 26, 2018)

Justice Kennedy cast the deciding vote in the 5-4 decision rebuking California’s attempt to compel pro-life pregnancy centers to speak a message they did not want to communicate.

The Court acknowledged that regulating the content of speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Policing the content of speech, the Court explained, can mean a failure to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Also recognized was that “the people lose when the government is the one deciding which ideas should prevail.”

Janus v. AFSCME (June 27, 2018)

Casting the deciding vote again, Justice Kennedy joined the Court’s decision declaring unconstitutional an Illinois law forcing state workers to pay dues to a union, even if they are not members. The Court’s opinion explained that when speech is compelled, “individuals are coerced into betraying their convictions.” Going deeper, the Court stated that “[f]orcing free and independent individuals to endorse ideas they find objectionable is always demeaning . . . .”

Concurrence in NIFLA v. Becerra (June 26, 2018)

Note: Though agreeing with the majority opinion in full, Justice Kennedy wrote a separate concurring opinion to “underscore… a matter of serious constitutional concern.” His concurrence was also joined by Chief Justice Roberts, Justice Alito, and Justice Gorsuch. Justice Thomas presumably would have joined, if not for authoring the majority opinion in the case.

“. . . This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression . . . This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these . . .

 . . . it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.’ Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

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