The Supreme Court’s ruling in favor of a Christian baker who refused to make a wedding cake for a gay couple is the textbook definition of narrow.
In his majority decision, Justice Anthony Kennedy went out of his way to say that “the outcome of cases like this in other circumstances must await further elaboration in the courts.” Just as they did with the first marriage equality case, the justices kicked the can down the road.
But Kennedy may not be there for the next round. At age 81, Kennedy may decide that it’s time to retire. Despite his support for LGBTQ rights, Kennedy is at heart a conservative justice, and he may prefer that a Republican president selects his replacement.
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Washington is already revving up the speculation about Kennedy’s departure, reading tea leaves for every possible sign.
Nor does it help that one of the liberal stalwarts on the bench, Ruth Bader Ginsburg, is 85. Ginsburg was one of the two dissenters in the case.
If Kennedy or Ginsburg were to be replaced with the type of ultra-right judicial nominees the Trump administration favors, there’s little question that the narrow ruling would give way to a broad religious liberty exemption.
All the signs are there in the separate concuring opinions. Clarence Thomas used his to rehash the implications of the marriage equality decision for which Kennedy wrote the majority opinion.
“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,” Thomas wrote.
“This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ 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.'”
Similarly, Neil Gorsuch wrote in his concuring opinion that “In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.”
He went on to compare the wedding cake in question to “sacramental bread.”
These opinions point the way to what a single change on the Court would mean. The conservative justices seem itching to carve out a broad exception for religious liberty at the expense of LGBTQ rights–in Thomas’s case, as a corrective to the marriage equality decision. Without Kennedy or Ginsburg there, it would be possible.
Theoretically, at least, the problem could be solved if Congress passed the Equality Act, which would amend existing civil rights laws to include LGBTQ people. However, the likelihood of such a bill passing in the current Congress is nil.
Even if Democrats win both houses of Congress in the fall, Trump isn’t about to sign such a law and anger the evangelical supporters who are his base. And even if he did, there’s no reason to believe that a conservative Supreme Court would decide that religious liberty exemptions don’t apply.
As Thomas put it, the Masterpiece Cakeshop ruling means religious liberty lives to fight another day. When that day comes, it may be a dark one for LGBTQ rights.