For Kennedy, this diatribe against the religious was reprehensible in the same measure: “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”
Yes, but so what? Kennedy did not challenge the law itself as a violation of Phillips’s religious freedom. Why should it matter that commissioners, enforcing the law, allowed their conviction of its rightness to express itself in some gratuitous sneering at a man Justice Kennedy and the Court were still willing to treat as a wrongdoer? What this situation seemed to violate, for Kennedy, was the “State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.” For years it was understood that the law need not be at all “neutral” between religion and irreligion, that there were compelling reasons, for the public good, to encourage the religious life. But now the claim is reduced simply to an obligation not to be indecorously nasty while the law refuses to respect religious convictions.