(LifeSiteNews) — As a junior in college, I enrolled in a constitutional law course that would serve, years later, as source of many things — among them great memories, withstanding friendships, and, above all else, a keener sense of awareness about the propensities of the American judiciary.
I remember one day, towards the end of the semester, our class found itself deep in discussion about the upcoming oral arguments for what would surely be a landmark case before the Supreme Court: Masterpiece Cakeshop v. Colorado Civil Rights Commission, or, in layman’s terms, the infamous gay wedding cake case.
For those in need of a refresher, the case revolved around a Lakewood, Colorado, bakery whose owner, Jack Philips, was sued by the Colorado Civil Rights Division on behalf of a same-sex couple for whom he declined to bake a wedding cake. Charlie Craig and David Mullins accused Masterpiece Cakeshop of sexual orientation-based discrimination, while Philips cited his personal religious beliefs for the refusal, arguing that designing cakes was, for all intents and purposes, a form of artistic expression protected under the First Amendment.
After fleshing out the details of Masterpiece and debating the constitutional merits of both the petitioner’s and the respondent’s positions, our class was directed to predict how the Justices would ultimately rule in the case. Even though that ruling wouldn’t come for months, we each jotted down what we thought the final vote tally would be on a note card, and prepared to defend our predictions in an open forum-style setting.
Aside from a few well-intentioned students who believed the Court, which at the time saw conservative Justices outnumber liberals 5-4, would side with Craig and Mullins at the behest of Anthony Kennedy (that era’s swing Justice who had voted in favor of expanding gay rights in the past), the vast majority of the class predicted a 5-4 ruling, along ideological lines, in favor of Philips.
I, however, did not fall into either of these groups.
Instead, I argued that while, yes, the Court would rule in favor of Philips and Masterpiece Cakeshop, it would do so by a larger margin than most of the class expected: 6-3, with liberal Justice Stephen Breyer joining the Court’s conservative wing.
Needless to say, my classmates scoffed at the suggestion. But I’d reached this conclusion due to the simple fact that, even for his historically left-leaning tendencies as a jurist, Breyer still possessed a streak of common sense-rooted pragmatism that evaded the bench’s other three liberals at the time and, on occasion, resulted in concurrences with the Court’s conservatives, who naturally harbored more originalist or textualist leanings.
Although admittedly rare, this was because Breyer, in many senses a classical liberal more so than a contemporary one, was less prone than a Ruth Bader Ginsburg or Sonia Sotomayor to fall in line with a petitioner or respondent who represented an ideological cause that aligned with his personal politics in cases where the clear constitutional advantage belonged to the opposing side.
Rather than invent his own convoluted constitutional answers for questions that obviously didn’t have one, Breyer, who has made no secret over the course of his tenure about his affinity for citing precedent, existing legislation, and even tradition as justification for his decisions, found it easier, on occasions that demanded it, to simply break ranks rather than sacrifice his credibility.
For instance, Breyer authored the majority opinion in Mahanoy Area School District v. B.L. just last year, which saw the Court rule 8-1 that a Pennsylvania school district’s decision to suspend a minor student over a profane social media post that was shared off-campus violated her First Amendment rights, and represented an abuse of the school’s limited power to regulate the speech of students away from schools — an important outcome during times like these where powers-that-be, from academia to the media and even government entities, seem hell-bent on censoring and/or penalizing those who use “unapproved” language.
Likewise, Breyer bucked expectations and sided with conservatives in 2005’s Van Orden v. Perry, where he ruled with the Court’s majority that keeping a 40-year-old monument on the grounds of the Texas state capitol featuring the Ten Commandments was not a violation of First Amendment’s establishment clause, but rather an acknowledgment of the Commandments’ historical connection to American culture.
Like these cases and others where Breyer could have made a purely political choice but didn’t, I felt strongly that Masterpiece would join their ranks, as it was obvious which side maintained an unmistakable constitutional edge.
Per my understanding of the facts, Philips hadn’t, as accused, actually discriminated against his prospective clients due to their sexual orientation at all, but rather opted against using his own God-given talents to contribute to an event — a same-sex wedding — that would promote an aspect of a social agenda that is diametrically opposed to his personal religious principles.
To clarify, service was not denied to Craig and Mullins just because they were gay. Philips informed them that his bakery did not cater to same-sex weddings due to his own Christian beliefs, but that they were still free to patronize his shop, and that, should they seek to make other purchases, they were welcome to do so.
So, in my view, this was a clear-cut legal question: Philips had every right to oppose same-sex marriage on religious grounds, and his private business practices should be allowed to reflect that.
As things turned out, though, I was wrong: When the Supreme Court finally issued its ruling in Masterpiece v. Colorado more than six months later, Justices did not side with Philips, as I’d predicted, in a 6-3 vote. They sided with Philips in a 7-2 vote, with not only Justice Breyer breaking ranks, but also Justice Kagan, an Obama appointee, doing the same.
I guess you can’t be right about everything.
Make no mistake: Stephen Breyer was and remains a liberal. Since first landing on the bench in 1994, he’s been, among other things, Roe’s best friend and greatest defender. At the same time, he was not entirely disinclined to the occasional surge of good constitutional judgment.
And in the wake of his announcement less than two weeks ago that he’ll retire at the end of the Supreme Court’s current term, I shudder at the thought of whom Biden may tap to replace him, because I have considerable doubt that, 30 years from now, we’ll be able to say the same about her.
Indeed, it could always be worse than Stephen Breyer.