Kennedy & problems with same-sex marriage

November/December 2018

The Obergefell decision began a collision course with other rights that Kentuckians, and all Americans, have always cherished.

Casting the deciding vote and writing for the Court in Obergefell v. Hodges, U.S. Supreme Court Justice Kennedy decided that the “limitation of marriage to opposite-sex couples” was inconsistent “with the central meaning of the fundamental right to marry.”

That June 26, 2015 declaration set in motion an inevitable collision course between foundational First Amendment rights and the newfound right of same-sex marriage. Kennedy’s acknowledgment that many believe same-sex marriage to be wrong “based on decent and honorable religious or philosophical premises” and reassurance that “neither they nor their beliefs are disparaged here” could not prevent the collision.

The First Collision

Masterpiece Cakeshop became the first collision between First Amendment and same-sex marriage rights to reach the U.S. Supreme Court after a Colorado baker refused to create a custom wedding cake for a same-sex couple, citing his religious beliefs.

Coming face-to-face with the collision of rights he had created, Kennedy once again wrote for the Court.

He recognized and briefly examined the “difficult questions as to the proper reconciliation” of “the authority of a State . . . to protect the rights and dignity of gay persons who are, or wish to be, married” and “the right of all persons to exercise fundamental freedoms under the First Amendment.”

The resolution of those difficult questions would have to wait. But Kennedy and six of the other eight justices joined together to make it abundantly clear that society’s quest for a resolution must provide for a “neutral and respectful consideration” of the baker’s claims.

It was upon this overarching and guiding principle that the Court based its June 4, 2018 decision. Colorado had replaced a “neutral and respectful consideration” of the baker’s claims with “impermissible hostility.”

Unacceptable Hostility Towards Religion

Kennedy led seven of the nine Supreme Court justices in declaring that “a clear an impermissible hostility toward the sincere religious beliefs” of an objector exists when those conducting a legal review:

1) Endorse “the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain;”
2) Suggest the objector may “believe what he wants to believe, but cannot act on his religious beliefs if he decides to do business in the state;”
3) Proclaim that a businessman wanting to do business in the state who has “an issue with the—the law’s impacting his personal belief system… needs to look at being able to compromise;”
4) Disparage the objector’s religion;” and
5) Characterize the objector’s religion as “merely rhetorical—something insubstantial and even insincere.”

Foundational Importance of Free Speech

The justice who set the collision course in motion is now retired, but he left a powerful trail of guiding principles for the resolution of the “difficult questions as to the proper reconciliation” in his last decisions.

NIFLA v. Becerra (June 26, 2018)
Kennedy cast the deciding vote in the Court’s rebuke of California and acknowledgment that “the people lose when the government is the one deciding which ideas should prevail.”

Kennedy’s Concurrence in NIFLA
Going further, Kennedy wrote a concurring opinion to “underscore… a matter of serious constitutional concern.” He warned of the “serious threat presented when government seeks to impose its own message” and explained that “it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.” Then he declared that “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.”

With four justices signed on and a fifth presumably agreeing, it appears that this was the majority thinking on the Court.

Janus v. AFSCME (June 27, 2018)
Kennedy again cast the deciding vote to declare that “individuals are coerced into betraying their convictions” when government compels speech and “[f]orcing free and independent individuals to endorse ideas they find objectionable is always demeaning.”

Free Speech Boosted from “Across The Pond”
Additional guidance for addressing our “difficult questions as to the proper reconciliation” of principles came from a unanimous October 10 decision by The Supreme Court of the United Kingdom. The unanimous decision favored a baker who refused to create a custom cake promoting same-sex marriage because of religious beliefs.

According to the United Kingdom’s top court, the takeaway from the U.S. Masterpiece Cakeshop case is that “there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics.”

While acknowledging “which side of the line particular factual scenarios fall” is debatable, the court declared that “in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation.”

Like Justice Kennedy, The Supreme Court of the United Kingdom recognized the “difficult questions” involved, declared the foundational importance of free speech, and expressed concern at a government body favoring others over the faith community.

Implications for a Kentucky Business
While America continues to wrestle with reconciling “the authority of a State . . . to protect the rights and dignity of gay persons who are, or wish to be, married” and “the right of all persons to exercise fundamental freedoms under the First Amendment,” the guideposts erected by the U.S. Supreme Court and The Supreme Court of the U.K. may have a significant impact on a Kentucky business.

Hands On Originals, a Lexington printing business, refused to print promotional shirts for the Lexington Pride Festival because promoting pride and the celebration of the LGBT lifestyle was against the owner’s religious beliefs.

Despite offering to connect the Gay and Lesbian Services Organization with another printer who was willing to produce the shirts for the same price, a complaint was filed and the Lexington-Fayette Urban County Human Rights Commission declared him guilty of discrimination on the basis of sexual orientation.

Regardless of Hands On Originals winning at every court level, Lexington’s Human Rights Commission has relentlessly pursued the case since 2012. The matter is currently being considered by the Kentucky Supreme Court.

 

Editor’s Note: For religious liberty protections, House Bill 372, the “The Pastor, Church and School Protection Act,” was introduced in the 2018 Kentucky General Assembly by Rep. Jason Petrie (R-Elkton), but it failed. It may be re-introduced in 2019.

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