I've just published an op-ed in The Guardian pushing back on claims that Masterpiece Cakeshop undermines Justice Kennedy's legacy of protecting LGBT rights. Here's how it opens:
Legacies are fickle things. Until 10:15am on June 5, 2018, Justice Anthony Kennedy was widely celebrated in the LGBTQ community as a judicial hero. The author of Romer v. Evans (1996), Lawrence v Texas (2003), Windsor v United States (2013), and Obergefell v Hodges (2015), Kennedy had played a singular role in advancing the cause of equal dignity for gay and lesbian Americans. A few hours after he issued Obergefell, which guaranteed same-sex couples the right to marry, The Onion cheerfully published a not-entirely-satirical piece announcing that Kennedy had ruled in favor of “the most out-of-control, bonkers gay pride parade that anyone could possibly imagine.”
But what has he done for us lately? Nothing good, according to my social media feed, which informs me that Kennedy has “torched,” “trashed,” and “wrecked” his legacy of protecting LGBTQ rights. Supposedly he did so in Masterpiece Cakeshop v Colorado Civil Rights Commission, which upheld a baker’s claim that he could not be required to create a wedding cake for a same-sex couple.
I’m not enthusiastic about the holding in Masterpiece Cakeshop. Indeed, I helped write a brief on behalf of church-state scholars advocating the opposite outcome, and there is some language in the opinion that offers cause for concern. But reactions of fury and despair are misplaced. Kennedy wrote a narrow opinion that served more to recognize and frame an important conflict than to resolve the hardest questions. Moreover, there are three features of Kennedy’s opinion that should be celebrated by progressives and members of the LGBTQ community.