Justice Kennedy, writing for the majority in the Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling, handed down today, decided both that the plaintiff, Jack Philips, could not be compelled to bake a cake for a gay wedding and that the defendant, the Colorado Civil Rights Commission, could compel him to bake that cake were the Commission to stop publicly likening Philips’ invocation of his Christian faith to Nazism and racism.
This contradiction helps explain the unusual 7-2 vote in favor of plaintiff. Anyone following such cases concerning First Amendment rights, especially regarding religion, would have expected a 5-4 vote and not clearly in favor of the plaintiff, either. But two of the justices in the majority, Justices Breyer and Kagan, seem, like Kennedy, willing to accept the compulsion of Christians against their conscience as long as it is done with face neutrality to religion, which seems to ask only for a change regarding public statements.
So there will be a next case, and it will probably be a much more troubling one. The Court’s opinion countenances both the “philosophical and religious objections” of the plaintiff, which come down to First Amendment rights, and the “civil rights” of the gay person or couple who might take offense at someone refusing to bake a cake or provide another service. Justice Kennedy acknowledges the conflict between these rights, but does nothing to resolve it.
What should trouble us above all is how our understanding of citizenship is bringing us to a political crisis, because of the conflict between fundamental rights. For this case is ultimately about what citizenship demands and permits. Each side in the quarrel claims one right as key to human dignity and wants to curtail the other. Further, the two sides to the legal quarrel each have a strong connection to a segment of our society, and to one of our political parties. This is not primarily about gay weddings or about Christianity, but the larger polarization in America will tend to obscure what’s at stake while amplifying the hatred each side will feel for the other.
Nor is the Court helping Americans come to a consensus. Whatever may be said of the Court’s decision and the reasoning it offered, it was neither principled nor clear. Justice Kennedy is back at his self-appointed task, to be the angel riding in the whirlwind, guiding the storm. Indeed, angel is the right word, for he does not seem to grasp his own mortality—he cannot long prevent the formation of a consensus on either side of him on the Court. This is his 30th year on the Court and his 82nd on this earth. He is undoubtedly the most important judge in this generation, if one looks at the victories to which he has appended his opinions. But what is his legacy?
He rose to prominence with his surprising majority opinion in Planned Parenthood v. Casey (1992), which reaffirmed Roe v Wade. Thus become America’s Philosopher-King, he has held for a generation the decisive vote on the most important Court decisions about human dignity, always favoring new forms of individualism (the last of which is Obergefell, of course). But this has coincided with the transformation of the Court into a player in partisan conflict, as trapped in our mutual hatreds as any other institution.
It is now impossible for any justice to command the respect of more than half the nation, and thus it is almost impossible for any Court decision, however important the issue, to persuade the public of the meaning, importance, and goodness of the Constitution. Instead, presidential contenders and ambitious senators turn judicial confirmations into occasions for angry partisanship. Obeyed by all, the Court is now respected almost by none for its constitutional interpretation. Kennedy, the most powerful Justice since Brennan, is also the most imprudent.
This is the context for today’s decision and the coming fights it announces between the two dominant factions in our politics. Prudence would require of us to find a way to satisfy both sides in part, chastise both in part, so that they count their wins and losses and think twice before stirring up another crisis. But even if there were such a happy compromise, how could it be enacted? The Court cannot make any threats, and our politics is too dysfunctional for the two sides to understand what they should fear from each other. As for the wins, the Court cannot dole out wins for each side.
Masterpiece Cakeshop fails to resolve any conflict, and the clock is running out on any mutually agreeable settlement. Increasingly, eyes are turning to the likely new Court majority and what, therefore, we can hope for or fear. It is becoming apparent that turning our political disagreements over to the Supreme Court was a great mistake. Not only have we elevated Justice Kennedy to an unseemly role, incompatible with constitutionalism, democracy, or his own abilities, but we have lowered ourselves into unusually hateful forms of politics, where only total victory, replete with humiliation of adversaries, can be sought or accepted.
We must learn again, before it is too late, that the first thing to say about the First Amendment is that it is concerned with the limits of politics. Freedom of religion and freedom of speech rightly come first in the Bill of Rights, because they deal with the most important human things. We have to learn to defend these in order to have a ground on which to disagree about other political matters. We have to defend them to defend an understanding of citizenship where we can deliberate together and legislate in mutually acceptable ways. The alternative is turning culture wars into civil strife and turning religion into a partisan actor in the culture wars.
We need a Court and politicians and a press that insist on taking most of our newest issues with free speech out of the courts. We already use our consumerism to express our self-made identities. If we now also allow ourselves to make up legal-political identities whereby we take each other to court for insults to our self-expression, suing people over cakes, then we will destroy the First Amendment. As free speech turns into self-expression, the temptation to police behavior and to form partisan fights around every disagreement only grows, and inevitably makes deliberation impossible.
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