In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Justice Kennedy acknowledged the dangers of ruling that disparate impact analysis applies to Fair Housing Act cases, and he tried to erect limitations that would avoid these dangers. However, as Justice Alito showed in his dissent, the supposed limitations will not constrain liberal bureaucrats and judges.
A parallel exchange can be found in today’s ruling finding a constitutional right to gay marriage. Justice Kennedy wrote:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
Mighty big of Kennedy to say so.
Unfortunately, though, the First Amendment doesn’t ensure “proper” protection. It ensures only the protection that bureaucrats, legislators, judges, and ultimately (as is clear from Justice Kennedy’s opinion as a whole) the zeitgeist provide. Justice Kennedy’s weak, vague statement will not discourage liberal bureaucrats, legislators, and judges from minimizing First Amendment protection.
Moreover, Justice Kennedy’s assurances about what opponents of gay marriage will be able to say didn’t extend to how they can behave. Thus, for example, individuals operating small businesses can expect to be fined, driven out of operation, and possibly imprisoned for exercising beliefs that “are so central to their lives and faiths.”
As in the Fair Housing case, Justice Alito addressed Justice Kennedy’s lame assurances. He wrote:
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true.
I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
Chief Justice Roberts also called out Justice Kennedy on this point:
The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.
There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
I assume that the four liberal judges simply wouldn’t sign an opinion that provided anything more than Kennedy’s empty language about religion freedom. The only hope was that Kennedy would insist on stronger language, and write separately if necessary.
This hope turned out to be in vain.
Does Kennedy believe that his limp, almost perfunctory “assurances” mean anything? One would think he’s not that oblivious. But his weak “assurances” in the housing case suggest that maybe he is.
The four liberal Justices must be delighted that Kennedy is inventing law with his eyes wide shut.