America’s Philosopher-King, Justice Kennedy, has ruled in Masterpiece Cakeshop and set the stage for the next big constitutional conflict over the meaning of the First Amendment and the character of free speech in America. For today, the Court gave relief to Jack Philips, owner of the Cakeshop, and berated the Colorado Civil Rights Commission for its openly anti-religious rhetoric. But the status quo ante is shaky and the hope is dubious that there’s no big legal-political crisis headed our way.
Before showing what’s wrong with the decision of the Court and what it portends, it’s very important first to understand the role of rhetoric in our lives now. Justice Kennedy thinks rhetoric is a matter of formality. He’s not against laws punishing Christians for their Christian rhetoric, but the rhetoric of such laws must be that of neutrality. This, of course, cannot pacify the partisans who are already lining up on either side of this and every other conflict over the First Amendment.
The contrary view of rhetoric is that, paradoxically, all formalities are substantive. This is common sense: once we’re faced with disagreement, we tend to perform our self-expression as an act of war, and thus to discern a principle of justice in the name of which we oppose those who oppose us. This is how we got to the Supreme Court in the first place.
We talk a lot about identity politics nowadays, and one way to see how deep identity politics goes is to look at this case as a conflict between individuals acting out their selves—performing their identities and clashing in public. The gay couple who asked Masterpiece Cakeshop for a wedding cake—they were performing an act of self-expression. The man who refused them refused to perform an act of self-expression and that itself was an act of self-expression. The couple took offense, found a principle that explained the offense, and performed their self-expression in a legal-political way. Jack Phillips took offense at how he was treated thereby and found a principle that fit this other offense and performed his self-expression in a legal way, too.
It’s not very helpful to understand every human action as self-expression, but this is where we are now. It’s important to add, too, that this is famously Justice Kennedy’s own dearest doctrine—that our self-expression is our necessary self-creation, without which we aren’t really anything. This is the meaning of all his hippie-sounding Court decisions about each man deciding for himself the meaning of existence.
Of course, we will not allow the federal government, not even the Supreme Court, to decide how we can express ourselves for us without massive conflicts; nor the corporations involved in our self-expression through digital media; Congressional hearings are the least of their and our troubles. We’re going to have a crisis of self-expression very soon, and we have no way of dealing with it. Senator Ted Cruz complaining to Facebook CEO Mark Zuckerberg about the politicized censorship of conservative shock celebrities in a Senate hearing is not going to fix the problem. We do not have either laws or concepts the public accepts for dealing with the problem of digital self-expression. Moreover, Justice Kennedy is himself a major culprit in our transferal of politics from deliberative institution to symbolic warfare. His attempt in Masterpiece Cakeshop to put a lid on the conflict by telling partisans to talk politely is laughable.
Justice Kennedy has made his decision on formality and rhetoric. He notes: “As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”
What if the commissioners had had the wit to refrain from calling a Christian man a Nazi slaver? What if commissioners contemplating similar legal compulsions read the Court’s holding and learn the slightest bit of dissimulation? What will happen to the next Christian man or woman imprudent enough to stand on his conscience on an issue like baking a cake for a gay wedding? The decision does not say.
Kennedy writes instead another one of his ambiguous paradoxes: “religious and philosophical objections to gay marriage” as well as “the civil rights” of gay persons and couples are “in some instances protected.” Which instances we do not know, but we may repeat with Lincoln that a house divided against itself will not stand. At some point, the old understanding of freedom of speech or the proposed new understanding of civil rights will pre