'Without Undue Disrespect': An Open Letter to Justice Anthony Kennedy About His Opinion for the Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018)

Abstract

On June 4, 2018, Justice Anthony Kennedy announced the judgment of the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018), one of the last opinions he wrote during the three decades he served on the Court.

In that historic opinion, Justice Kennedy coined a novel and illogical phrase that had never before appeared in any opinion ever written by any Supreme Court justice in American history, when he commanded lower courts to ensure that government officials evaluating claims of religious liberty treat all religious beliefs and citizens "without undue disrespect." It is clear from the context of the opinion that Justice Kennedy mistakenly believed that this phrase was roughly equivalent to the familiar expression, "with all due respect." But they are not.

In this open letter to Justice Kennedy and his colleagues, the author respectfully points out the Court's pernicious stylistic error, and explains why the phrase coined by the court is a mischievous aberration and a logical absurdity, and graciously invites the Court to correct this mistake before the opinion is finally reported in the United States Reports.

Keywords: Marriage Equality, Justice Anthony Kennedy, Masterpiece Cakeshop, Colorado Civil Rights Commission, Civil Rights, Constitutional Law, First Amendment, Free Exercise of Religion, Legal Writing, Same-Sex Marriage