Two years after the Supreme Court found the Constitution confers a right to same-sex marriage, Chief Justice John Roberts worked privately with Justice Anthony Kennedy to steer the outcome in subsequent decisions pertaining to gay rights disputes.
Kennedy was the author of the landmark opinion in Obergefell v. Hodges, the 2015 case that saw a narrow 5-4 ruling requiring states to perform and recognize marriages of same-sex couples. Roberts issued a stern dissent that voiced disagreement not over the question changing the institution of marriage, but rather, in favor of deferring the question to state legislatures, saying it was "stealing" the issue from the people.
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"The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent," Roberts, an appointee of former President George W. Bush, wrote in his dissent. "Just who do we think we are?"
But two years after that ruling, Roberts felt called to work privately with Kennedy to guide the outcomes in subsequent LGBT-related decisions. The negotiations of such decisions were not previously reported and are part of an array of revelations set to be detailed in an upcoming book titled Nine Black Robes: Inside the Supreme Court's Drive to the Right and Its Historic Consequences by CNN Supreme Court analyst Joan Biskupic.
In the 2017 case Pavan v. Smith, Roberts joined Kennedy's ruling that blocked Arkansas from preventing a pair of lesbians from being named on their baby's birth certificate. The pair of Republican-appointed justices were joined by the high court's four liberals at the time, Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer.
In exchange, Kennedy voted for the court to hear an appeal of Masterpiece Cakeshop in Colorado in the subsequent term, a case surrounding a business owner who was facing sanctions for refusing to make a wedding cake for two gay men.
Kennedy was hesitant to take up baker Jack Phillips's case so soon after Obergefell and opted for a narrow ruling for Phillips, holding in the 7-2 decision in 2018 that the Colorado Civil Rights Commission held an impermissible hostility toward the baker without going further into resolving First Amendment rights to discriminate against LGBT customers.
As an appointee of former President Ronald Reagan, Kennedy was an outlier among Republican-appointed justices, a conservative voice of the court's progressive gay rights rulings stemming back to 1996. He often spoke of a dignity owed to same-sex couples, and in his 2015 decision, wrote, "The nature of injustice is that we do not always see it in our own times."
Following his 2018 retirement announcement, Kennedy was succeeded by Justice Brett Kavanaugh, who held a more conservative record. Liberal Justice Ruth Bader Ginsburg was succeeded by conservative Justice Amy Coney Barrett in 2020, solidifying the present 6-3 Republican-appointed majority on the high court.
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The court is now poised to address the First Amendment question surrounding Phillips's case in an eventual ruling in 303 Creative v. Elenis. It surrounds Colorado business owner Lorie Smith, who is preemptively challenging the state's anti-discrimination law, claiming her sincere Christian beliefs cannot compel her to create a custom wedding website for any non-heterosexual marriage.
Biskupic's reporting notes justices "abhor any suggestions of deal-making" but cited the Supreme Court's upholding of the Affordable Care Act as a prime example of Roberts working across the judicial aisle to form a majority consensus.
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Roberts's secret deal with Kennedy on LGBT case had lasting impact on Supreme Court: Book - Washington Examiner
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