Perry Dane is a professor of law at the Rutgers School of Law - Camden. His research and teaching interests include religion and the law, constitutional law, jurisdiction, American Indian law, the law of charities, the jurisprudence of Jewish law, legal pluralism, comparative constitutionalism, and the debate on same-sex marriage,.
Justice Anthony Kennedy’s majority opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission did not reach the underlying questions in the case. It did not decide whether Jack Phillips’s refusal to bake a wedding cake for a same-sex couple implicated either his right to freedom of speech or free exercise of religion. Nor did it decide how to balance such potential expressive or religious interests against same-sex wedding couples’ right to equal treatment in the commercial realm. The decision was, in that sense, a punt. However, it did send a clear and important message.
Understanding that message requires some context. The current controversy over religious liberty and related claims made by opponents of same-sex marriage is freighted, and fraught, in a way that similar debates have not been in the past. Strikingly, each side often uses the same word—“weaponize”—in expressing its grievances against the other side. The symmetry is remarkable. Supporters of LGBTQ rights argue that claims for religious exemptions are being “weaponized” to refight the culture war over same-sex marriage itself. And advocates on the other side complain that the right to equality is being “weaponized” to try to root out every remaining vestige of dissent from the new consensus in support of same-sex marriage, or to expel conservative religious views more generally from the national conversation. In short, each side sees more at stake than the customary tension over competing claims of right or the conventional effort to respect religious pluralism while also recognizing other important civil norms. And each side is convinced that it is the victim of the other side’s “weaponization.”
Both sides have a point, though each also has a stake in exaggerating it. In any event, the escalation of the stakes in these cases is both analytically unfortunate and dangerous to our social fabric. One side or the other surely has the better case about how to referee claims of conscience against claims of equality in the commercial marketplace. But what might have been a legal skirmish gets perceived as a war, marked by that usual wartime combination of demonization and apocalyptic dread.
Justice Kennedy’s Masterpiece Cakeshop opinion gave the win to Jack Phillips in part because some members of the Colorado Civil Rights Commission disparaged his faith, seemed to doubt his sincerity, and suggested that religion more generally “has been used to justify all kinds of discrimination throughout history.” He also won because both the Colorado Commission and the Colorado courts were sloppy to the point of possible hostility in trying to distinguish his case from that of other bakers who refused to bake cakes because of religious opposition to same-sex marriage.
Kennedy’s own reasoning here might have been analytically shaky. But his real effort, I think, was to push back against the mutual weaponization of the conflict and to warn that such escalation can have legal costs.
To be fully effective, of course, that message would need to be heard by both sides, mutually. Whether it was is a good question.
Be that as it may, the hubbub about Masterpiece Cakeshop quickly got drowned out by other developments at the end of the Supreme Court’s most recent term. In Trump v. Hawaii, the Court upheld President Trump’s travel ban directed mostly at citizens of several Muslim-majority countries. Justice Kennedy’s concurrence poignantly emphasized the duty of government, even when the judiciary feels powerless to interfere, to respect religious freedom and religious equality. He wrote that “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.” In a deep sense, the spirit of this concurrence is of a piece with Justice Kennedy’s opinion in Masterpiece Cakeshop and for that matter with his opinion in Obergefell recognizing a right to same-sex marriage. The important difference is that his paean to human dignity was, this time, not backed up by the coercive authority of the courts to hold other institutions to account. And that was painfully unfortunate.
And then Justice Kennedy retired. The coming battle over his successor promises to be vicious. And it illustrates an even sadder truth of our age. For it is not merely specific legal conflicts that have become weaponized in the service of our current culture wars. The law itself risks becoming weaponized. As do judges. And the process for appointing judges, especially Supreme Court justices, has most clearly become little more than a mad battlefield.
Most Americans do not realize that our system for appointing federal judges and most state judges is, by world standards, bizarre. Other advanced legal systems at least try to insulate the judicial appointments process from politics, and certainly from partisan politics. But we Americans haven’t figured out how to reform our system. We take it for granted. For that matter, we seem to revel in the escalation. The only hope, I suppose, is that, as with any war, though only metaphorically, the exhaustion of battle will one day drive us to sit down to construct new, better structures for our common life at last.