By now, most know Supreme Court Justice Anthony Kennedy has announced his retirement.

The question for people of faith, however, is whether his legacy of disregarding their faith will leave with him as well?

Some may think fondly of Kennedy as the author of the Court majority’s recent Masterpiece Cake opinion — ruling in favor of a Christian cake maker who had been condemned by the Colorado Civil Rights Commission for declining to make a cake for a same sex wedding reception.

As a result, many Christians across America celebrated — but, perhaps too soon, however.

They perceived that Kennedy had vindicated their constitutional right to freely exercise their faith in God.

But that is not what his majority opinion was about.

In Kennedy’s view, the Commission’s ruling against the cake maker was unacceptable, not because a gay couple had demanded a Christian businessman to violate his religious faith, but because the Commissioners did so in a way that was not “neutral and respectful.”

One example that Kennedy pulled from the public record of the Commission’s hearing revealed a Commissioner publicly berating the cake maker’s faith by telling him:

“[W]e can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.” (emphasis added)

So, at the end of the day, Kennedy’s opinion will more likely serve as a road map for future anti-Christian litigants to guide them as to how they can successfully arrive at subordinating the rights of Christians to the rights of others whom they feel are more important.

With this opinion, and going forward, Kennedy has now informed plaintiffs, commissioners and courts that, so far as a majority of the Supreme Court is concerned, it may be permissible to hate a Christian’s faith, and even to rule against Christians on the basis of that hatred, provided those deciding the issue avoid revealing that hatred in the public record.

In a dissenting opinion, Justice Thomas objected to Kennedy leaving this gaping legal barn door open. Thomas noted it was so narrowly crafted as to leave unresolved — yet very foreseeable — that future courts may find it permissible to find people of faith who conduct a public business and remain opposed to gay marriage to be “bigoted and unentitled to express [their] different view.” 

This then begs the exact question Kennedy left unanswered: Does the constitutional protection that used to be afforded those who only wish to freely exercise their faith even exist anymore?

This may be answered, in part, by recalling Obergefell v. Hodges — a case also written by Kennedy only three years ago. By way of judicial legislation — hidden behind the veil of a judicial opinion — he completely reset America’s moral compass by legalizing same-sex marriage, over the objections of millions of people of faith.

Perhaps the greater threat that case presented to the faithful, however, was the fact that Kennedy’s opinion — by way of omission — all but declared that in American jurisprudence, their God was no longer relevant to the court’s resolution of moral issues.

In his 28-page Obergefell opinion, Kennedy did not find it necessary to mention God… not even once.

Nor did he feel compelled to consider with any sincerity what anybody’s God might think about the morality — or immorality — of his ruling.

Evidently Kennedy did not feel it necessary to consider any authority higher than himself.

Given this history, therefore, it would be error to conclude from the Masterpiece case that Kennedy reversed course to become a protector of the faithful.

In fact, the truth is just the opposite.

Aside from the one time he found himself unable to avoid quoting the cake maker’s expressed statement of faith, is it a mere coincidence that his Masterpiece opinion again skillfully avoided any mention of God?

The more likely conclusion is that Kennedy does not care much about either any God or people who share a faith in that God.

Whatever may be the case, however, the fact remains that he fully enabled others with views similar to his own to follow his Masterpiece rule in the future to more successfully pursue a sequence of similar litigation to draw the noose around the necks of the faithful ever more tightly in the passage of time.

Some have already foreseen this inevitability. In the words of one legal analyst, “The only thing we can be sure of is that [the] issues [the Masterpiece decision left unresolved] will return to the courts, and in all likelihood, the Supreme Court, before long.”

In just the week following the Masterpiece decision, a high school graduate was required to remove all references to his faith from his commencement speech. At another school, a teacher who was a Christian was terminated for refusing to address students by the names they had chosen to reflect their individual gender preferences. And in California, legislation has been proposed to ban all literature that would criticize anyone’s gender orientation, presumably including the Bible.


As a result, this battle that is eroding the rights of people of faith seems likely to only intensify going forward.

That is, unless a cultural shift in the paradigm surrounding this debate can be attained.

To that end, Part II of this thread — coming soon — will reflect upon two divergent views on “faith.” It might just be possible to find there exists more common ground shared by the holders of each view than either side may suspect. 

Clifford C. Nichols — a former research associate of The Heritage Foundation — is an attorney licensed to practice law in both California and New Mexico.