As much as I agree with Justice Kennedy in Windsor and Obergefell, I feel as though his failure to anchor the right of same-sex couples to marry more securely in a single constitutional provision is what set the groundwork for cases like Masterpiece Cakeshop and 303 Creative. He correctly identifies that marriage is a fundamental right extending to same-sex couples, yet does not seem to apply the strict scrutiny standard that would normally be used to analyze legislation affecting a fundamental right. Instead, in Windsor he states that laws that make "discriminations of unusual character require careful consideration." Obergefell contained equally non-committal language without any express invocation of strict scrutiny.
Less than a decade after Obergefell, the Supreme Court in Masterpiece Cakeshop stated that private business owners could refuse to serve same-sex couples on religious freedom grounds. And in 303 Creative, this was extended even to online services like website building. These cases are grounded in the idea that laws or regulations requiring businesses to serve same-sex couples when doing so would violate the business owner's religious views intrude on the free exercise of religion. Because religious groups are protected classes, these laws or regulations are reviewed under strict scrutiny. But because the rights of same-sex couples were never elevated to the same level of protection as the rights of religious groups, the interests of the former will always fall to the latter.
I think if Justice Kennedy had more clearly given same-sex couples heightened protections and invoked strict scrutiny, it would have avoided the problems that arose in Masterpiece Cakeshop and 303 Creative and would have more accurately effectuated what his intent seemed to be in Windsor and Obergefell.
Yes, by not being doctrinally clear in Obergefell, Kennedy created space for religious liberty to be elevated over nondiscrimination. Note though that this was a smart choice, since a stricter opinion might have cost him the majority.
Even if he had used strict scrutiny, that wouldn’t have guaranteed LGBTQ rights always win. It would simply have forced courts to weigh two compelling interests head-on -- which, admittedly, might have been quite helpful since it would have brought more clarity to [what I see as the muddled] balance between religious objections and same-sex rights.
Great question. Intersectionality shows how discrimination often happens at the overlap of identities—like being both Black and female—where harm isn’t captured by looking at race or sex alone. We see this in employment cases too, where someone might not face bias as a woman or as a Black person, but does as a Black woman. The Court’s tiered framework treats traits in isolation, so it often misses those combined effects.
As much as I agree with Justice Kennedy in Windsor and Obergefell, I feel as though his failure to anchor the right of same-sex couples to marry more securely in a single constitutional provision is what set the groundwork for cases like Masterpiece Cakeshop and 303 Creative. He correctly identifies that marriage is a fundamental right extending to same-sex couples, yet does not seem to apply the strict scrutiny standard that would normally be used to analyze legislation affecting a fundamental right. Instead, in Windsor he states that laws that make "discriminations of unusual character require careful consideration." Obergefell contained equally non-committal language without any express invocation of strict scrutiny.
Less than a decade after Obergefell, the Supreme Court in Masterpiece Cakeshop stated that private business owners could refuse to serve same-sex couples on religious freedom grounds. And in 303 Creative, this was extended even to online services like website building. These cases are grounded in the idea that laws or regulations requiring businesses to serve same-sex couples when doing so would violate the business owner's religious views intrude on the free exercise of religion. Because religious groups are protected classes, these laws or regulations are reviewed under strict scrutiny. But because the rights of same-sex couples were never elevated to the same level of protection as the rights of religious groups, the interests of the former will always fall to the latter.
I think if Justice Kennedy had more clearly given same-sex couples heightened protections and invoked strict scrutiny, it would have avoided the problems that arose in Masterpiece Cakeshop and 303 Creative and would have more accurately effectuated what his intent seemed to be in Windsor and Obergefell.
Yes, by not being doctrinally clear in Obergefell, Kennedy created space for religious liberty to be elevated over nondiscrimination. Note though that this was a smart choice, since a stricter opinion might have cost him the majority.
Even if he had used strict scrutiny, that wouldn’t have guaranteed LGBTQ rights always win. It would simply have forced courts to weigh two compelling interests head-on -- which, admittedly, might have been quite helpful since it would have brought more clarity to [what I see as the muddled] balance between religious objections and same-sex rights.
Are these cleanly-cut tiers impacted at all by Kimberly Crenshaw's concept of intersectionality?
Great question. Intersectionality shows how discrimination often happens at the overlap of identities—like being both Black and female—where harm isn’t captured by looking at race or sex alone. We see this in employment cases too, where someone might not face bias as a woman or as a Black person, but does as a Black woman. The Court’s tiered framework treats traits in isolation, so it often misses those combined effects.