If one overarching theme emerged from the decisions handed down in June in the most important cases of the 2017-18 Supreme Court term, it was that the First Amendment matters. Or rather, that one particular clause of the First Amendment—the guarantee of the right of freedom of speech—matters. Whether other clauses, in particular the right to the free exercise of religion, matter quite as much today as they once did is not entirely clear from those decisions. In fact, a strong argument could be made that the ascendance of free speech as the chief value in constitutional jurisprudence has come at the expense of other, far deeper and more important, liberties.
As he has for the better (or should we say worse?) part of the past quarter century, Justice Anthony Kennedy played a pivotal role in shaping the direction of the most anticipated decisions of this term. The retirement of the Reagan appointee who saved Roe v. Wade (1973) in Planned Parenthood v. Casey (1992), in which he introduced the “Mystery Passage” that would, by way of Lawrence v. Texas (2003), redefine the word marriage in Obergefell v. Hodges (2015), has been greeted by pro-lifers and defenders of marriage as an opportunity to reconsider two of the worst examples of judicial activism over the past 50 years.
With the nomination of D.C. Circuit Court of Appeals Judge Brett Kavanaugh on July 9, however, President Trump has guaranteed that not much will change. Despite candidate Donald Trump’s explicit promise to appoint justices who would vote to overturn Roe v. Wade, President Donald Trump declared in his introduction of Kavanaugh that he, “like Ronald Reagan,” did not ask potential nominees where they stood on controversial cases. And yet he must certainly have known that, in his confirmation hearings for the D.C. Circuit Court of Appeals back in May 2006, Kavanaugh, in response to a question from Sen. Chuck Schumer, made his views clear that: “I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It’s been decided by the Supreme Court…. It has been reaffirmed many times, including in Planned Parenthood v. Casey.”
Orthodox. Faithful. Free.
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President Trump, it would appear, has found not only a successor to Anthony Kennedy, but his own Anthony Kennedy. Like Kennedy, Kavanaugh is a practicing Catholic; unlike Kavanaugh, Kennedy’s views on Roe (and his later views on matters involving homosexuality) were unknown at the time of his nomination by Reagan in 1988.
Two Republican senators, Rand Paul of Kentucky and Tom Cotton of Arkansas, signaled in advance of Trump’s announcement that they aren’t likely to support Kavanaugh. While Chuck Schumer will likely repeat his 2006 question to Kavanaugh and use whatever answer the judge gives to try to claim that Kavanaugh’s view of Roe has changed, Kavanaugh’s confirmation will depend on the Trump administration privately convincing a few Democratic senators that, while states may be allowed to pass some reasonable limitations on abortion, Roe itself will remain safe.
Of course, that is hardly a surprise. President Trump’s campaign promises notwithstanding, it’s unlikely that a majority could have been assembled to reverse Roe, even if Trump had proposed a better nominee than Kavanaugh. Worse yet, in the long run, any progress that may be made in limiting Roe may well be short-lived, because of other, less obvious, aspects of Justice Kennedy’s legacy.
Take, for instance, the decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, widely regarded as a “win” for business owners who decline, on religious grounds, to provide services for homosexual “marriages.” Justice Kennedy, writing for the majority, explicitly declared it to be the opposite. The owner of Masterpiece Cakeshop prevailed—for now—essentially on a fluke: The majority found that the state of Colorado did not employ religious neutrality in ordering the owner of the shop to provide cakes for homosexual weddings, because the Colorado Civil Rights Commission expressed their ruling in language that was explicitly hostile to the owner’s Christian beliefs. Had the commission refrained from the use of such language, the Court would have ruled differently, because, Kennedy declared, a business owner “might have his right to the free exercise of his religion limited by generally applicable laws.”
Both the owner of Masterpiece Cakeshop and the owner of Arlene’s Flowers (a business in Washington state charged with discrimination for refusing to provide flowers for a homosexual wedding) are not out of the woods; quite the opposite. The Court remanded both cases back to the state courts for reconsideration, and Kennedy’s decision essentially outlines what each state needs to do to prevail next time. Without a change for the better at the state level, the owners’ “victories” are almost certain to prove Pyrrhic in the long run.
Two other cases with free-exercise implications were also viewed as victories, and they are in a very narrow sense. Both were 5-4 decisions, and Justice Kennedy joined the majority. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, the Court revisited the longstanding question of whether public-sector employees should be forced to pay either dues or alternative fees to unions that engage in political activities with which they do not agree. Such activities often include lobbying on behalf of abortion rights, homosexual “marriage,” and other policies that are incompatible with Christian morality. The majority opinion, however, avoided any consideration of the Free Exercise Clause and was based entirely on the grounds that forcing a public-sector employee to subsidize political speech that he disagrees with is a violation of his own right to free speech.
Likewise, in National Institute of Family and Life Advocates v. Becerra, the Court ruled that the state of California had violated the free-speech rights of employees of crisis-pregnancy centers by requiring them to provide information on how to obtain abortions, including phone numbers of a California state agency that refers women to abortionists. Having served as president of the board of directors of a pregnancy-care center in Illinois when we challenged a similar law there, I’m happy to see California centers win this reprieve. I’m also certain that it won’t last long, because the limits of acceptable speech have a way of changing depending on political and cultural circumstances. At the time Anthony Kennedy was nominated to the Court, the term hate speech was newly minted; now, dozens of states have laws providing criminal or civil penalties for various utterances, and with every passing day more expressions of support for traditional morality are reclassified as “hate speech,” first in popular culture and eventually in law.
Conservative and Christian legal defense funds have read the signs and have fought recent federal court cases on the battlefield of free speech, where they—correctly—believed they were most likely to win. But in the process, the Free Exercise Clause has been less often invoked, and even less frequently cited by the Court as the basis for a ruling. As the boundaries of acceptable speech continue to shift, and opposition to abortion and homosexual “marriage” becomes first culturally unacceptable and, later, legally unacceptable (as in Canada), the Free Exercise Clause will once again seem more important.
By then, however, it may be too late to reassert the Free Exercise Clause in a robust way—especially if a Justice Kavanaugh proves to be Justice Kennedy’s successor in spirit, and not simply in his seat.