Justice Kennedy’s majority opinion in Masterpiece Cakeshop today is essentially a punt, requiring that body adjudicating claim of religious freedom against an anti-discrimination claim cannot have animus toward sincere religious beliefs. It decides nothing else. The Battle between Justices Kagan and Gorsuch over religious liberty’s clash with antidiscrimination laws shows what’s coming.
But there’s another aspect to the opinion that could have implications for the partisan gerrymandering cases, IF the Court holds these cases justiciable and they turn, at least in part, on legislative motivation for passing a redistricting law.
In Masterpiece, the Court holds that the Colorado board showed evidence of anti-religious animus. Here was the evidence of that found by the Court:
On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated:
“I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we 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.”
Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content.
This suggests that when one or more legislators or decisionmakers make a comment which shows a constitutionally impermissible intent, and the rest of the legislators or decisionmakers who vote on a question remain silent about it, then the bad intent can be inferred to the other decisionmakers.
If this principle were applied to redistricting places like North Carolina, Maryland, or Wisconsin, it would make it easier to show impermissible intent to favor one party over another. (North Carolina, as I’ve explained, is the cleanest of the three cases in this regard. And if the Court punts in the WI and MD cases this term, it could come back next term, and matter a lot IF Justice Kennedy remains on the Court.)