Now that the dust has settled about the Masterpiece Cake decision, and with Justice Kennedy’s announced retirement alongside the start of the confirmation assessment of nominee Judge Brett Kavanaugh (former law clerk to Kennedy), perhaps it’s time to ferret out the shaky future of religious liberty during this transition. Justice Kennedy’s legacy as a centrist on the Court will probably be summarily characterized by his focus on LGBT rights and religious liberty, along with his penchant for narrowly tailored opinions. The latter is not bad adjudication, but it makes it difficult for pundits to predict the future of Court proceedings and outcome. Clearly, after Masterpiece the Court will look for cases without blatant animus toward religious practices. Thus, as many experts pointed out, Masterpiece wasn’t the proper case to find the right balance between how LGBT lifestyle rights co-exist with the Free Exercise of religious rights in our Constitutional Republic. The search is on, though, for the ‘perfect case’ with a pending new Associate Justice!
In Masterpiece, it’s probably the Concurrences now, in a practical sense, that provide just as much guidance to the future of religious liberty as did Kennedy’s limited applicability, majority opinion. Left unsaid is the underlying reality that Jack Phillips’ convictions were based on his worship adherence at work, in his calling as an Evangelical Christian in the marketplace. Thus, Justice Gorsuch’s Concurrence notes that a person is “entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment.”
Thus, Kennedy’s legacy is really a terrible conundrum – which compelling Constitutional interests will be gored and found secondary to more compelling interests? There is an uncomfortable threat of a serious diminution of the primacy of the First Amendment’s Free Exercise Clause in deciding any future cases. Imagine a state and local civil rights action being upheld where the protections of the Fourteenth Amendment’s Equal Protection and Due Process clauses surpass the protected behaviors of the First Amendment. The First Amendment is primary for a whole host of reasons, and represents to the world what some scholars say was truly unique to The American Experiment’s Constitution at its creation.
It’s possible in this day and age that the core of the First Amendment could be irreparably broken … and that should be the major, over-riding concern to those engaged in evaluating Kennedy’s replacement. Right now as it stands, it’s not a stretch of the imagination at all to envision a Free Exercise claim falling to a compelling interest to protect LGBT interests. Even the most rigorous “strict scrutiny” balancing test might find that frighteningly rare case in the future that would restrain lawful religious conduct amidst some sort of commercial exchange disagreement. I wonder if any of the Founding Fathers ever contemplated that a lifestyle behavior might gut the Free Exercise Clause. Do we want to take that chance even with a newly constituted Court?
Perhaps the wisdom of Justice Scalia could help us. Scalia stated in another Free Exercise case, Employment Div. v. Smith that there are limits to Constitutional worship rights, though — a faithful adherent’s worship should not become “a law unto itself.” And as he noted in Smith, it might be wise not to discount the political process here. Perhaps, instead of waiting for the brouhaha over Judge Kavanaugh’s hearing confirmation process, Congress itself, could delineate the limits of “strict scrutiny” in this arena. And maybe Congress could take even larger steps to delimit the Commerce Clause’s scope and effects on public accommodations statutes and regulations, rather than sit cowering every May-June wondering what new group of five Justices will ultimately draw societal lines in concrete. Christians should push to lock in Masterpiece somehow now in the absence of further certainties – that may be as good as it gets.
Neither side, the faith-based religious adherents nor the LGBT community, can claim the right not to be offended occasionally, nor the right not to be disrespected occasionally – tolerance surely doesn’t extend that far. Heaven help us all, though, if bureaucrats or judges have the last word in delimiting the lawful, legitimate practices of the Evangelical faith, in and outside the Church…and Heaven help the LGBT community should it be unduly marginalized as has happened to them and other disadvantaged minorities in the past. May the right person(s) emerge to help us find that path of true tolerance. Perhaps, those issues should be foremost in the upcoming inquiries of Judge Kavanaugh. Faithful worship adherents want to know.
Kyle Usrey is Vice President of Academic Affairs and Constitutional Law Professor at Colorado Christian University.