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The absurdity of Anthony Kennedy


Anthony Kennedy’s religion clause jurisprudence is based on two principles:

(1) The government must remain strictly neutral towards religion.

(2)  Religious belief is not a valid basis for claiming exemptions from laws of general applicability.

These two principles contradict each other on their face.  For example, suppose Colorado anti-discrimination laws prohibit a baker who makes cakes for opposite-sex marriages from refusing to make cakes for same-sex marriages on the basis of claim that the baker has a religious objection to same-sex marriages.  Colorado is thus burdening the religious belief of the baker, if it does not grant the baker an exemption to the law.  But of course the government would not be remaining neutral in matters of religion if it granted a religious exemption to the baker, either. The government would be granting an exemption to a general law that would only be available to people who held a particular religious belief.  In other words, the idea of government remaining “neutral” in matters of religion is empty.

Kennedy tries to wriggle out of this conundrum by claiming that, although religious belief does not excuse one from having to confirm with laws of general applicability, the application of this principle by the government can’t be based on “hostility” to the belief in question.

But again, this idea is simply empty.  Obviously any government action that refuses to grant a religious exemption to adherents of particular religion in regard to the operation of the law is  in this respect “hostile” to that religion by definition, and conversely not “hostile” to religions whose beliefs don’t put their adherents in this particular bind.  The government can’t avoid favoring some religious beliefs and disfavoring others, because an enormous number of laws will unavoidably offend some religious beliefs and not offend others.

Kennedy’s implicit response to this obvious point is to define “hostility” in some much narrower — and pragmatically useless — way, as consisting of a willingness on the part of government officials to say mean things about religious beliefs, as opposed to coming to exactly the same legal conclusion in regard to legal significance of those beliefs, but doing so in a “respectful” manner.

The irony here is that, by the definition of “hostility” Kennedy is employing in Masterpiece Cakeshop, Kennedy’s own opinions in Lawerence v. Texas and Obergefell v. Hodges would certainly violate the free exercise clause.

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