A secret deal between Justices John Roberts and Anthony Kennedy on gay rights and what it means today
By Joan Biskupic, CNN Senior Supreme Court Analyst
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.
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 an 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.
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.
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 to 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.
(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.
Wedding website and Obergefell’s future
The court is now weighing a new Colorado case that offers another chapter to the Masterpiece Cakeshop controversy. Brought by website designer Lorie Smith, it will determine whether she has a free-speech right to refuse to create a wedding website for same-sex couples.
Unlike in the Masterpiece Cakeshop dispute, Smith is challenging the Colorado anti-discrimination law before it has been used against her. Smith, who said she is prompted by her Christian beliefs, is seeking an injunction to halt any enforcement for declining to create a website for any marriage that is not between a man and a woman.
Oral arguments were held in the case of 303 Creative v. Elenis in December, and a decision is expected by the end of June, when the justices usually recess until fall.
A broader assault on a constitutional right to same-sex marriage could occur in upcoming years. Last June, when the justices reversed nearly a half century of abortion rights, Thomas urged his colleagues to reconsider other precedents involving individual rights that have been rooted in constitutional due process of law, including Obergefell v. Hodges.
Alito, in his majority opinion in Dobbs v. Jackson Women’s Health Organization, tried to reassure people that the majority’s reasoning would not extend to other due process rights, such as same-sex marriage: “(W) e have stated unequivocally that ‘nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.’ We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.'”
Still, Alito has remained incensed by the original 2015 ruling. In a separate 2020 case, for instance, he joined Thomas in a statement referring to “this Court’s cavalier treatment of religion in its Obergefell decision.”
Chief justice leaves options open
Roberts continues to leave his options open. One of his signature attempts at compromise occurred in 2021 in yet another case at the nexus of religious liberty and LGBTQ interests, arising from the city of Philadelphia’s suspension of a foster-care contract with Catholic Social Services. The city suspended the contract when the agency would not certify same-sex couples as foster parents.
Pulling together a six-justice majority to narrowly construct the contract and the case, Roberts found that the city had violated the free exercise rights of Catholic Social Services but he avoided a sweeping decision on religion liberties. He was joined by five justices, to his right and left, including Breyer, a liberal who sometimes aligned with the chief justice in trying to build cross-ideological bridges.
During the Trump presidency Roberts’ interest in compromise grew, as he tried to avoid mirroring the polarization in the other branches of government. That Trump-era pressure added another dimension, and a paradox, to justices who shuddered at the suggestion of dealmaking: Some internal pacts were made precisely to avoid a look of politics. Justices declined cases, delayed cases or made compromises to avoid 5–4 conservative-liberal, Republican-Democratic splits. To some justices, that breached the integrity of the bench. To others, it was the only way to avoid the partisan abyss.
With the retirement of Kennedy in 2018 and then Breyer in 2022, two of Roberts’ collaborators are gone.
The chief has recalibrated his leadership and approach to the law with the addition of each new justice. The recent five-year period, 2017-2022, when four successions occurred, proved especially challenging.
The court today is still getting its bearings, and Roberts is always looking for allies.
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