Lingering Supreme Court mystery: Justice Anthony Kennedy and religious liberty

Supreme Court Justice Anthony Kennedy retired in 2018, but religious-liberty activists still want to know where he hoped to draw a bright line between religious freedom and the Sexual Revolution.

Kennedy knew that the First Amendment's declaration that government "shall make no law ... prohibiting the free exercise of religion" was creating warfare in modern American law and politics. But he didn't know how to end the strife.

In his majority opinion in the court's 5-4 Obergefell v. Hodges decision legalizing same-sex marriage, Kennedy stressed that many Americans opposed this change because of "decent and honorable religious or philosophical premises," and he denied that "their beliefs are disparaged" in the ruling.

"It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned," he wrote, in 2015. "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths."

Since then, the Supreme Court has issued important rulings clarifying the rights of churches, denominations and ministries with clearly stated doctrines on sex, gender and marriage, noted Stanley Carlson-Thies, who recently retired as head of the Institutional Religious Freedom Alliance, which he founded in 2008 as part of the nonpartisan Center for Public Justice. He also assisted the George W. Bush and Barack Obama administrations with issues linking faith and public life.

"The court knows that the freedom of religious expression is more than worship, alone," said Carlson-Thies, reached by telephone. "But where will the court draw the line, especially with religious individuals who own businesses that deal with the general public? …

"That's the mystery. Everyone knows the court needs to do something. These issues are not going away. … But it isn't clear the everyone thinks the Supreme Court should have the last word on everything. You hear that argued on the left and the right -- depending on who controls the White House."

What comes next for religious liberty, after the Masterpiece Cakeshop decision?

The Pulitzer Prize winning "Angels in America" has long been a touchstone for gay spirituality, so it wasn't surprising that actor Andrew Garfield celebrated winning a Tony Award in the play's revival with remarks mixing faith and politics.

It's crucial, he said, to celebrate the play's "spirit that says 'no' to oppression. It is a spirit that says 'no' to bigotry. … It is a spirit that says we are all made perfectly."

Garfield concluded: "We are all sacred. … So let's just bake a cake for everyone who wants a cake to be baked!"

The baker behind the U.S. Supreme Court's recent Masterpiece Cakeshop decision has heard pronouncements of this kind many times since that fateful day in 2012 when he declined to create one of his handcrafted, personalized cakes to celebrate the same-sex marriage of Charlie Craig and David Mullins.

"The biggest myth I hear all the time, pretty much, is that I turned away a gay couple. But the truth is, I never turn away any customers. I do, sometimes, have to decline to create cakes that violate my faith, and that was the case here," said Phillips, in a Lutheran Public Radio interview soon after the June 4 decision.

"The two gentlemen that sued me were welcome in my shop that day. I told them, I'll sell you cookies, brownies, birthday cakes, anything else, custom cakes -- it's just that I can't create this one, because this was a cake that goes against the core of my faith."

While this was a 7-2 ruling, Justice Anthony Kennedy's majority opinion (.pdf) focused on evidence that the Colorado Civil Rights Commission had demonstrated open hostility to Phillips and his Christian faith. Thus, he avoided a broader ruling on First Amendment protections of free speech and the "free exercise" of religion.

Naturally, church-state activists have argued about the significance of this much-anticipated decision. At least four camps have emerged so far.