The Deal Between Chief Supreme Roberts and Retiring Progss. Gay Friendly Justice Kennedy
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When the Supreme Court declared a constitutional right to same-sex marriage in 2015, Chief Justice John Roberts revealed extraordinary anger as he read aloud what for him was an unprecedented dissent from the bench.
“Just who do we think we are?” he asked.
Roberts emphasized the ancient understanding of marriage as between a man and woman and argued that any approval of same-sex unions should be left to state legislatures. It remains the only time in his 18 years as chief justice that he has taken the dramatic step of going beyond the words of his written opinion and orally dissenting.
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Just two years later, however, Roberts was motivated to work privately with Justice Anthony Kennedy, the author of the Obergefell v. Hodges landmark ruling, to steer the court’s outcome in a pair of key gay rights disputes. The negotiations in those cases, not previously reported, offer a glimpse into trade-offs among justices, demonstrate the chief’s soft power of persuasion and show that the court’s sentiment on gay rights issues can be both fraught and evolving.
The justices abhor any suggestion of dealmaking, whether overt or implicit, but closed-door pacts occur, and Roberts has been at the center of them for years. In many instances, law clerks know about a deal struck between justices. But in others, only the two justices involved truly know. Sometimes various chambers have dueling accounts of what happened, or individual justices remain baffled about why a colleague voted the way he or she did in the end.
Here, Roberts would join Kennedy in favor of LGBTQ interests in ruling that Arkansas could not prevent two lesbians from both being named on their baby’s birth certificate.
Meanwhile, Kennedy would vote for the court to hear the appeal of the owner of Masterpiece Cakeshop in Colorado, who’d been sanctioned for refusing to bake a wedding cake for two gay men.
The pact had the additional result of keeping a testy draft from Justice Samuel Alito regarding the Masterpiece Cakeshop petition from becoming public.
The justices’ public action in both cases was deliberately announced on the same day, June 26, 2017. That also reflected a pattern of Roberts’. The acceptance of an appeal from a baker who had refused to create a cake for a gay couple based on religious objections could easily have led to a public perception of new Supreme Court hostility toward gay rights. But announcing the Arkansas birth-certificate ruling countered that perception, at least in the moment.
The backstory of two gay rights cases handled in tandem in 2017 has new salience today. The justices are currently considering another dispute testing the free-speech rights of business operators who say their Christian beliefs prevent them from serving same-sex couples. That decision, expected by June, could clarify the reach of Obergefell’s protections – and limits – for same-sex couples.
The justices may eventually revisit Obergefell v. Hodges more fully, too. When the court reversed abortion rights last June, Justice Clarence Thomas urged his colleagues to reconsider other decisions based on constitutional due process of law, including the right to same-sex marriage.
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It is notable, too, that only two of the five members of the Obergefell majority still serve, Sonia Sotomayor and Elena Kagan.
Kennedy was succeeded by Brett Kavanaugh, whose record is more conservative; liberal Ruth Bader Ginsburg was succeeded by conservative Amy Coney Barrett; and liberal Stephen Breyer replaced by fellow liberal Ketanji Brown Jackson.
Swaying Kennedy to hear the baker’s claim
Pavan v. Smith involved an Arkansas Department of Health policy dictating that a birth certificate be issued with only the birth mother’s name if there was no male partner. That meant that in situations involving lesbian couples, the second woman would not be listed. The lead couple in the case, Terrah and Marisa Pavan had married in New Hampshire in 2011 and four years later had a child in Arkansas through a sperm donation.
Kennedy had been the voice of the court’s progressive gay rights rulings dating to 1996. He repeatedly spoke of the dignity owed same-sex couples and in his 2015 decision said, “The nature of injustice is that we do not always see it in our own times.”
He wanted to reverse the Arkansas state court, based on Obergefell’s protections for same-sex couples, and was joined by the four liberals who had helped compose the majority in Obergefell.
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They believed the Pavan v. Smith matter was straightforward enough to be done through a summary reversal opinion, without holding oral arguments or a full round of written briefs.
Under a private court rule, however, such action required six votes, not the usual majority of five. Thomas and Alito, who had dissented in Obergefell, would not agree to that summary action. Justice Neil Gorsuch, who had just joined the bench, felt the same way. He believed that nothing in the Obergefell decision spoke clearly about the birth certificate dispute.
Masterpiece Cakeshop v. Colorado Civil Rights Commission was brought by a baker, Jack Phillips, who had been sanctioned under Colorado law for refusing to create a cake for two gay men celebrating their marriage. Phillips argued that being forced to provide a wedding cake to a gay couple violated his constitutional rights to the free exercise of religion and free speech.
Coming in the wake of the Obergefell decision, the case aroused widespread attention, especially from conservatives seeking assurance that religious-based opposition to same-sex marriage would be protected.
Kennedy was reluctant to take up the baker’s case, so soon after the Obergefell decision and without significant lower-court consideration of such emerging issues. He’d previously told colleagues that he was skeptical of religious exemptions for retailers who would deny services to gay people. So Phillips’ petition languished.
Alito focused on potential hostility toward the baker’s religious beliefs, began working on a dissenting opinion from the expected denial of the Masterpiece Cakeshop appeal. But that Alito dissent, circulated to his colleagues and described by court sources, never reached the public because the justices eventually agreed that the baker’s claim of religious discrimination should be heard.
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(Alito has not concealed his enduring view that religious freedom is under siege and that the Obergefell decision impinged on free exercise and free speech rights. In a 2020 speech to the Federalist Society, he would lament, “You can’t say that marriage is the union between one man and one woman. Until very recently that’s what the vast majority of Americans thought. Now it’s considered bigotry.”)
During oral arguments in December 2017 and subsequent negotiations in the Masterpiece Cakeshop case, Kennedy continued to be torn. He was ready to side with Phillips but to a limited extent. Roberts assigned Kennedy to write the opinion for the court, aware of the fine line Kennedy traversed, and because of Roberts’ own interest in a decision that avoided the deep split of Obergefell.
Kennedy concentrated in his June 2018 opinion on the particular facts of Phillips’ case, including a contentious hearing by the Colorado Civil Rights Commission that Kennedy said had revealed an impermissible hostility toward Phillips’ beliefs. Kennedy, joined by Roberts and four other justices, ruled narrowly for Phillips and declined to go further in resolving First Amendment rights to discriminate against LGBTQ customers.
“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” Kennedy wrote, reflecting his continued tentativeness.
Ginsburg and Sotomayor were the only dissenters, homing in on the bias the gay men faced: “What matters,” Ginsburg wrote, “is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”
The other two liberals (Breyer and Kagan) were willing to make a deal with Kennedy and, to some extent, Roberts. They constituted a loose middle of the bench that has disappeared over the years.
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