Analysis Law and Policy

Justice Kennedy and the Supreme Court’s Tilted Scale

Katherine Cross

In a recent ruling by the Supreme Court, which paved the way for similar state-level legislation, five justices voted in favor of weakening the separation of church and state; but the implications of Justice Anthony Kennedy’s libertarian jurisprudence are the most dangerous and far-reaching.

The text of Mississippi’s recently passed law, SB 2681 or the Religious Freedom Restoration Act, lavishes careful procedural and heraldic language on a proposed change to the state seal, adding “In God We Trust” to it. It does make for interesting reading, summoning the stilled bones of antiquated language into a peculiarly modern shape—for all the conservative chest-beating about a grand restoration of traditional “Christian America,” Mississippi’s bill had to note that it was changing a seal that had existed unchanged since 1818. So much for tradition.

But the symbolism matters. This legislative blazonry was, after all, appended to a successful anti-LGBT “religious freedom” bill, not dissimilar from the sort that has been making the rounds lately. SB 2681 provides that “government shall not substantially burden a person’s exercise of religion,” with broad enough language to suggest that this empowers private business owners to discriminate; it’s what I’ve called the “crowdsourcing of bigotry.”

This is primarily a state-level phenomenon, but a recent ruling by the Supreme Court in Town of Greece v. Galloway gives stark insight into the legal thinking that made SB 2681 what it is. That ruling allows government-sponsored religious invocations to be more explicitly sectarian, paving the way for mass, explicitly religious prayer in legislative sessions—and quite possibly other publicly sponsored events. The ruling is potentially far-reaching, dramatically eroding the power of courts to enforce the Establishment Clause.

One Roanoke, Virginia, supervisor—Al Bedrosian—already wants to ban all other faiths from any public invocations at legislative sessions in the city (he’s terribly concerned about Wiccans and Satanists, apparently).

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In light of that, it is instructive to consider Justice Anthony Kennedy’s majority opinion in Town of Greece, and how it is that his seemingly measured and unobtrusive vision of government power has actually empowered people like that hapless supervisor to use a particularly perverse reading of religious freedom to deny minorities full citizenship. Five justices voted in favor of weakening the separation of church and state, but the implications of Kennedy’s libertarian jurisprudence are the most dangerous and far-reaching, and his profoundly naive view of power is one that is creating one of the biggest juridical obstacles to women’s liberty in a generation, to say nothing of its deleterious impact on LGBTQ people and communities of color.

He is holding up the federal judicial end of what has chiefly been a state and legislature-based battle, to the detriment of us all.


“It is presumed that the reasonable observer is acquainted with this tradition [of legislative prayer] and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens,” wrote Kennedy in his majority opinion, “not to afford government an opportunity to proselytize or force truant constituents into the pews.” He added that those who feel “excluded or disrespected” by such public prayer should ignore it because “offense … does not equate to coercion. Adults,” he chides, “often encounter speech they find disagreeable.”

Much of the majority opinion turns on this question of “coercion,” which for Justice Kennedy must be conscious, and explicitly named. Arguing that the Town of Greece’s legislative prayers “neither chastised dissenters nor attempted lengthy disquisition on religious dogma,” Kennedy avers that legislative bodies are not in any sense applying pressure to those of non-Christian faiths by requiring such prayer sessions because they are putatively optional and no one is holding a gun to the heads of legislators or petitioners. As Justice Thomas put it, “peer pressure, unpleasant as it may be, is not coercion.”

This faulty understanding of power is, indeed, what is disarming the sentinels of constitutional authority and licensing a perilously narrow reading of one religion to become the sine qua non of “religious freedom” in our society. This mentality is what is at work behind every “conscience clause,” behind every anti-LGBTQ “religious freedom restoration” law, and behind attempts to limit the availability of contraception.

Visible in Justice Kennedy’s other rulings is an equal disdain for the positive assertion of public rights—and it is important to focus on him because his occasional dissents from the four hardline conservatives on the Court are just as important as his concurrences with them; he is the keystone that makes many 5-4 splits happen, after all.


Justice Kennedy’s reasoning has always borne a libertarian streak with consistency and pride.

He was feted by many liberals for helping to strike down the Defense of Marriage Act (DOMA)—a surprise to some who had come to group him with the Court’s more deeply conservative members. But he voted to strike down DOMA because of the way in which the law was constructed, as a government intrusion that deliberately segregated marriages. That same summer he also voted to gut the Voting Rights Act (VRA) by striking down its fourth article, which provided for federal review of all changes to voting laws in certain jurisdictions that had a long history of legally expressed racial prejudice.

The difference? The VRA is legislation that is designed to level the playing field by using the power of the federal government to empower people of color. It is this species of legislation, born of a radically democratic philosophy, that is anathema to Kennedy. DOMA, by contrast, was about a negative right—the right to have a marriage unmolested by government interference. Marriage is a pre-existing right, not a new one created by any legislation. Thus DOMA was an intrusion that the libertarian Anthony Kennedy understood to be one compelling him to rule in favor of LGBTQ people—although he signed onto the most narrow version of the ruling, to be quite sure, which did not overturn same-sex marriage bans at a stroke but rather just disapprovingly punted the matter back to the states.

For Kennedy, it is the vision of a government meddling in the affairs of non-governmental actors that fills him with such dread, and constitutes the only exercise of power that he considers to be truly coercive. All other forms of prejudice, he seems to suggest, are best dispensed with privately through the thickness of one’s hide and little else.

Yet these informal swarms of prejudice are very real and profoundly coercive.

Kennedy makes an all too common mistake when he suggests that cases like Town of Greece, which orbit questions of “exclusion,” are really just about hurt feelings. In an op-ed to the Washington Post about the case, conservative columnist George F. Will expressed that sentiment perfectly when he groused that “[t]aking offense has become America’s national pastime; being theatrically offended [signifies] the delicacy of people who feel entitled to pass through life without encountering ideas or practices that annoy them.”

The echoes of Kennedy’s one-liner about “adults” are quite clearly discernible.

This bloviating about offendedness is the refusal to see material harm in certain social formations that may well manifest as speech but also constitute acts unto themselves, which then materially reshape the world around them. Words, after all, do something; it is that fundamental truth which underscores the civil libertarian’s enthusiasm for speech.

Indeed, at least one supervisor in Virginia is taking this ruling as his cue to materially exclude non-Christians from being represented in his city’s invocations. These are not just words; something is being done.


Yet, informal domination is a ghost story to Justice Kennedy. Thus it is that he lends majesty and grandeur to far grubbier efforts to erode the freedoms of women and minorities, in no small measure by licensing policies that constitute such groups as de facto others merely because there is no de jure text calling for their subjugation. A business can deny trade to an LGBT person as an expression of their religious beliefs, and this is not discrimination because no government law is actually the origin-point of the intrusion—a pharmacist can deny a woman Plan B, and a town or city may hold legislative prayers for the Christian faith but no other, for the same reason.

Justice Kennedy seems to say that as long as they’re nice about it, such behavior is tolerable, and can be “ignored” by “adults” of good will. But this is not citizenship. We do not have a democracy if collectives of some citizens are allowed to practice discrimination against others in ways that are completely unchecked. Liberty is not about survival of the fittest.

It is worth noting that a major trend at both the Supreme Court level and the state legislative level has been to compel victims of discrimination to stand alone, and without government assistance. Whether it was Lilly Ledbetter, political actors without access to great wealth, people of color in Southern states, or women working at Walmart, the Court has suggested that there were either severely truncated federal remedies for them or simply none at all.

In other words, women and minorities are increasingly unable to repair to the standard of our shared nationhood, which the federal government (often referred to as “public” for good reason) is meant to represent. In denying the women of Walmart the ability to sue as a class, for instance, the Supreme Court shattered the kind of collective power needed for people of minimal means—in other words, the ordinary citizen—to challenge large institutional collectives like corporations. Each woman, then, was made to sue for sex discrimination as an individual, not as a group, in spite of the clear pattern of sexism at many stores.

You can guess which side Justice Kennedy was on in that case, of course.

This erosion of the collective power of minorities has been a hallmark of the Roberts Court’s jurisprudence, and it is mirrored by far-right state legislatures that are determined to dynamite the pillars of collective redress. Such cases and laws compel the government to stand idly by as private citizens do violence to one another, in other words.


If, as many fear, the Supreme Court rules in favor of stores like Hobby Lobby in that pivotal case on contraception, it will be yet another blow to the power of citizens to appeal to the government to defend the rights we all supposedly have. The “religious freedom” of a powerful institution—in this case, a corporation—trumps the rights of women to bodily autonomy and the health care they earn through their labors. (We ought to have a full-on right to health care, but that’s another polemic entirely.)

Justice Kennedy is, doubtless, expressing his sincere fealty to his libertarian ideals, but the naiveté of his conception of power is profoundly magnified by the prodigiously convex lens of the Roberts Court’s conservatism. It constructs citizenship as a state-of-nature wilderness wherein all must take up arms against all to ensure some happy equilibrium of rights and duties, where no embattled minority or less-privileged group can appeal to a collective entity like government to level their playing field.

Thick skin and battle armor are all that this particularly debauched form of citizenship requires.

The crowdsourcing of bigotry requires government to step aside and deny the tools of redress to the powerless. Because Justice Kennedy and those like him believe that coercion can only come from a law that explicitly says it is discriminating, and that anything else is an ignorable “offense” that does little more than wound “feelings,” they allow the government to step back from its vital role in providing women and minorities with the collective power they need to stand on an even footing with established, privileged, or powerful collectives. This can be the institution of Christian religion or the Catholic Church, a corporation, or the traditionalism of anti-LGBT prejudice that makes itself manifest in thousands of microaggressions that police space and behavior.

Justice Kennedy has helped create the space for those like the Mississippi state legislature to make it harder for its own citizens to guarantee their rights when it comes to such actors. We are all the poorer for it.

Commentary Economic Justice

The Gender Wage Gap Is Not Women’s Fault, and Here’s the Report That Proves It

Kathleen Geier

The fact is, in every occupation and at every level, women earn less than men doing exactly the same work.

A new report confirms what millions of women already know: that women’s choices are not to blame for the gender wage gap. Instead, researchers at the Economic Policy Institute (EPI), the progressive think tank that issued the report, say that women’s unequal pay is driven by “discrimination, social norms, and other factors beyond women’s control.”

This finding—that the gender pay gap is caused by structural factors rather than women’s occupational choices—is surprisingly controversial. Indeed, in my years as a journalist covering women’s economic issues, the subject that has been most frustrating for me to write about has been the gender gap. (Full disclosure: I’ve worked as a consultant for EPI, though not on this particular report.) No other economic topic I’ve covered has been more widely misunderstood, or has been so outrageously distorted by misrepresentations, half-truths, and lies.

That’s because, for decades, conservatives have energetically promoted the myth that the gender pay gap does not exist. They’ve done such a bang-up job of it that denying the reality of the gap, like denying the reality of global warming, has become an article of faith on the right. Conservative think tanks like the Independent Women’s Forum and the American Enterprise Institute and right-wing writers at outlets like the Wall Street Journal, Breitbart, and the Daily Caller have denounced the gender pay gap as “a lie,” “not the real story,” “a fairy tale,” “a statistical delusion,” and “the myth that won’t die.” Sadly, it is not only right-wing propagandists who are gender wage gap denialists. Far more moderate types like Slate’s Hanna Rosin and the Atlantic’s Derek Thompson have also claimed that the gender wage gap statistic is misleading and exaggerates disparities in earnings.

According to the most recent figures available from the Census Bureau, for every dollar a man makes, a woman makes only 79 cents, a statistic that has barely budged in a decade. And that’s just the gap for women overall; for most women of color, it’s considerably larger. Black women earn only 61 percent of what non-Hispanic white men make, and Latinas earn only 55 percent as much. In a recent survey, U.S. women identified the pay gap as their biggest workplace concern. Yet gender wage gap denialists of a variety of political stripes contend that gender gap statistic—which measures the difference in median annual earnings between men and women who work full-time, year-round—is inaccurate because it does not compare the pay of men and women doing the same work. They argue that when researchers control for traits like experience, type of work, education, and the like, the gender gap evaporates like breath on a window. In short, the denialists frame the gender pay gap as the product not of sexist discrimination, but of women’s freely made choices.

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The EPI study’s co-author, economist Elise Gould, said in an interview with Rewire that she and her colleagues realized the need for the new report when an earlier paper generated controversy on social media. That study had uncovered an “unadjusted”—meaning that it did not control for differences in workplace and personal characteristics—$4 an hour gender wage gap among recent college graduates. Gould said she found this pay disparity “astounding”: “You’re looking at two groups of people, men and women, with virtually the same amount of experience, and yet their wages are so different.” But critics on Twitter, she said, claimed that the wage gap simply reflected the fact that women were choosing lower-paid jobs. “So we wanted to take out this one idea of occupational choice and look at that,” Gould said.

Gould and her co-author Jessica Schieder highlight two important findings in their EPI report. One is that, even within occupations, and even after controlling for observable factors such as education and work experience, the gender wage gap remains stubbornly persistent. As Gould told me, “If you take a man and a woman sitting side by side in a cubicle, doing the same exact job with the same amount of experience and the same amount of education, on average, the man is still going to be paid more than the woman.”

The EPI report cites the work of Harvard economist Claudia Goldin, who looked at the relative weight in the overall wage gap of gender-based pay differences within occupations versus those between occupations. She found that while gender pay disparities between different occupations explain 32 percent of the gap, pay differences within the same occupation account for far more—68 percent, or more than twice as much. In other words, even if we saw equal numbers of men and women in every profession, two-thirds of the gender wage gap would still remain.

And yes, female-dominated professions pay less, but the reasons why are difficult to untangle. It’s a chicken-and-egg phenomenon, the EPI report explains, raising the question: Are women disproportionately nudged into low-status, low-wage occupations, or do these occupations pay low wages simply because it is women who are doing the work?

Historically, “women’s work” has always paid poorly. As scholars such as Paula England have shown, occupations that involve care work, for example, are associated with a wage penalty, even after controlling for other factors. But it’s not only care work that is systematically devalued. So, too, is work in other fields where women workers are a majority—even professions that were not initially dominated by women. The EPI study notes that when more women became park rangers, for example, overall pay in that occupation declined. Conversely, as computer programming became increasingly male-dominated, wages in that sector began to soar.

The second major point that Gould and Schieder emphasize is that a woman’s occupational choice does not occur in a vacuum. It is powerfully shaped by forces like discrimination and social norms. “By the time a woman earns her first dollar, her occupational choice is the culmination of years of education, guidance by mentors, parental expectations, hiring practices, and widespread norms and expectations about work/family balance,” Gould told Rewire. One study cited by Gould and Schieder found that in states where traditional attitudes about gender are more prevalent, girls tend to score higher in reading and lower in math, relative to boys. It’s one of many findings demonstrating that cultural attitudes wield a potent influence on women’s achievement. (Unfortunately, the EPI study does not address racism, xenophobia, or other types of bias that, like sexism, shape individuals’ work choices.)

Parental expectations also play a key role in shaping women’s occupational choices. Research reflected in the EPI study shows that parents are more likely to expect their sons to enter male-dominated science, technology, engineering, and math (often called STEM) fields, as opposed to their daughters. This expectation holds even when their daughters score just as well in math.

Another factor is the culture in male-dominated industries, which can be a huge turn-off to women, especially women of color. In one study of women working in science and technology, Latinas and Black women reported that they were often mistaken for janitors—something that none of the white women in the study had experienced. Another found that 52 percent of highly qualified women working in science and technology ended up leaving those fields, driven out by “hostile work environments and extreme job pressures.”

Among those pressures are excessively long hours, which make it difficult to balance careers with unpaid care work, for which women are disproportionately responsible. Goldin’s research, Gould said, shows that “in jobs that have more temporal flexibility instead of inflexibility and long hours, you do see a smaller gender wage gap.” Women pharmacists, for example, enjoy relatively high pay and a narrow wage gap, which Goldin has linked to flexible work schedules and a professional culture that enables work/life balance. By contrast, the gender pay gap is widest in highest-paying fields such as finance, which disproportionately reward those able to work brutally long hours and be on call 24/7.

Fortunately, remedies for the gender wage gap are at hand. Gould said that strong enforcement of anti-discrimination laws, greater wage transparency (which can be achieved through unions and collective bargaining), and more flexible workplace policies would all help to alleviate gender-based pay inequities. Additional solutions include raising the minimum wage, which would significantly boost the pay of the millions of women disproportionately concentrated in the low-wage sector, and enacting paid family leave, a policy that would be a boon for women struggling to combine work and family. All of these issues are looming increasingly large in our national politics.

But in order to advance these policies, it’s vital to debunk the right’s shameless, decades-long disinformation campaign about the gender gap. The fact is, in every occupation and at every level, women earn less than men doing exactly the same work. The right alleges that the official gender pay gap figure exaggerates the role of discrimination. But even statistics that adjust for occupation and other factors can, in the words of the EPI study, “radically understate the potential for gender discrimination to suppress women’s earnings.”

Contrary to conservatives’ claims, women did not choose to be paid consistently less than men for work that is every bit as valuable to society. But with the right set of policies, we can reverse the tide and bring about some measure of economic justice to the hard-working women of the United States.

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.