Why Did Elena Kagan Vote for the Masterpiece Cakeshop Supreme Court Ruling?

Observers of Monday's Supreme Court ruling in favor of a Colorado baker who refused to make a wedding cake for a gay couple in 2012 may have been surprised to find that two of the court's liberal justices, Elena Kagan and Stephen Breyer, joined with the conservative majority for the opinion. But a legal expert told Newsweek this was the result of the very specific nature of this case.

“The reason and motive for the baker's refusal were based on his sincere religious beliefs and convictions," Justice Anthony Kennedy wrote in the majority opinion. Justices Ruth Bader Ginsberg and Sonia Sotomayor dissented while Breyer and Kagan, considered to be liberal-leaning, joined the more conservative justices in a majority ruling.

“This will surprise lots of people until they read what actually happened,” Richard Primus, a constitutional law expert at the University of Michigan Law school, told Newsweek of Kagan and Breyer’s decision to join the majority. “It’s a very specific case.”

According to Primus, the court found a way to rule in favor of Jack Phillips, the owner of the Masterpiece Cakeshop, while making it clear the first amendment is “not a shield against anti-discrimination law.” Had that not been spelled out clearly, Primus added, there’s “not a chance” Breyer and Kagan would’ve joined the majority. 

“It’s striking in its narrowness,” he said of the ruling. “The court found a way to rule for the baker without making the first amendment a licence to exempt oneself from anti-discrimination laws.”

While the ruling held a 7-2 majority, the justices did take time to distiguish their opinions.

Justice Ruth Bater Ginsburg and Sonia Sotomayor, who both dissented from the court ruling, argued that the same sex couple shouldn't lose the case, even though the Colorado Civil Rights Commission, which first ruled against Phillips, showed disparate treatment of other bakers who refused to make cakes disapproving of same-sex marriage. 

While Kagan joined the majority opinion, she filed a concurring opinion along with Breyer that stated, "Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State's decisions are not infected by religious hostility or bias."

Justice Neil Gorsuch, along with Samuel Alito, opined that refusing to make cakes for a same-sex marriage and refusing to make cakes that disparage same-sex marriage were similar from a legal perspective, while Justice Clarence Thomas wrote a seperate opinion along with Gorsuch, arguing Phillips's custom cakes are an "expressive" conduct protected by the First Amendment. 

Despite how specific the ruling was, advocacy groups on both sides of the decision voiced their support and frustration.

“If we want to be a truly tolerant society, we must provide room for everyone to peacefully live and work according to their beliefs—regardless of whether we agree with their views,” the Alliance Defending Freedom, a religious advocacy group wrote on their website in support of the ruling.

The American Civil Liberties Union responded with a statement on Twitter. “As a nation, we’ve already rejected the idea that businesses open to the public have a license to discriminate against people because of who they are,” its statement read.

Join the Discussion