Religious freedom: Does it hinge on Anthony Kennedy?

Wednesday, December 6, 2017
Charlie Butts (

SCOTUS Justice Anthony KennedyTwo attorneys who witnessed oral arguments Tuesday at the Supreme Court in a major religious freedom case are hopeful the Constitution will be respected – but concerned the final ruling may hinge on the vote of one justice.

Arguments were held yesterday in the case of Jack Phillips, owner of Masterpiece Cakeshop in the Denver area, who was found guilty by the Colorado Civil Rights Commission of discrimination against a homosexual couple when, in 2012, he declined to make a custom cake for their wedding reception.

Arguments on Tuesday morning were heavily peppered with questions from the justices, including from Anthony Kennedy – who is believed to hold the swing vote. It was Justice Kennedy (pictured above) who, in 2015, wrote the majority decision in Obergefell v. Hodges, the landmark case that legalized same-sex "marriage" in the United States.

Present in the gallery yesterday was attorney Nate Kellum of the Center for Religious Expression, who recalls Kennedy's questions to Alliance Defending Freedom attorney Kristen Waggoner.

"When he was dealing with the petitioner, Jack Phillips, [Kennedy] was ... trying to determine what the limits would be [for religious freedom], how far could it go," Kellum tells OneNewsNow. "And certainly I think he indicated that there would be some concerns that, in his words, 'would be an affront to the gay community.'"

Eric Baxter, senior counsel at Becket, says that's going to be critical in Kennedy's understanding of the issue. "He really seemed to get that there needs to be a 'live and let live' attitude," he shares, "that we can't take extreme offense just because someone doesn't like our choices – but we also can't force them to participate in our own choices: the tolerance has to go both ways."

According to Kellum, Kennedy also made a statement about Colorado's Civil Rights Commission. "He seemed to be disturbed, even visibly angry, by the fact that they didn't seem to respect Mr. Phillips' rights," says the attorney.

The New York Times quotes Kennedy as pointing out that the Commission was "neither ... tolerant nor respectful of Mr. Phillips' religious beliefs."

Baxter is optimistic the high court will rule in favor of Phillips. "The court seemed concerned about the coercion factor," he relates.

"[They wondered] should we really be coercing someone to celebrate an event like a wedding, or for that matter any other event that's so rich with religious and social significance – and the court seemed to say no one should be coerced to support an event like that in violation of their own deepest religious convictions."

The court's decision should be announced by the end of June 2018.

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