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Anthony Kennedy’s Suffering Olympics

The justice’s preoccupation with civility turned Masterpiece Cakeshop into an argument over who spoke more rudely.

Of course the initial fights over the Supreme Court’s 7–2 decision on Monday in Masterpiece Cakeshop v. Colorado Civil Rights Commission were about the headlines. The early round of screaming headlines (“Baker wins!”) hardly told the whole story, and thus launched a second round of headlines insisting that the first headlines were wrong (“Baker wins narrowly” and “Baker wins but also loses!”). Which in turn triggered a host of metaresponses from conservative publications deriding mainstream papers for characterizing the decision as narrow (in part because some conservatives, including Donald Trump Jr., don’t understand that narrow doesn’t reflect the vote count). We can and should have a long conversation about what too-fast media coverage of complicated and good-for-one-ride-only case dispositions can do to public discourse, and how people on both sides of this issue came away feeling dismissed regardless of the majority’s attempted compromise. But in some larger ontological sense, it is an absolutely delicious irony that a case that was ultimately decided in large part on the basis of how we speak to one another about religion and discrimination further polarized and distorted the national discourse about religion and discrimination.

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Consider the extraordinary fact that, as Eugene Volokh notes, a case that was initially brought as a religious-liberty challenge, then briefed and argued almost entirely on free-speech grounds, was decided Monday on religious-liberty grounds. This is likely because the court, after oral arguments, quickly realized that inserting itself into questions about whether bakers, florists, hairdressers, makeup crews, and busboys are all “artists” for First Amendment purposes might be folly. Justices Clarence Thomas and Neil Gorsuch seem to be the only justices game to try.

Consider also that, in a case in which the line between religious freedom and free expression had already become hopelessly blurry, the majority opinion, penned by Justice Anthony Kennedy, is almost myopically concerned with words spoken by a member of the Colorado Civil Rights Commission about religious objectors. What that means for those of us playing along at home is that a case about religion, argued as a case about speech, was decided on religious grounds, because of words spoken that ostensibly disrespected religion. No wonder the headline writers were confused. To the extent Masterpiece Cakeshop resolved the issue it was granted to take on—whether or not the dignitary interests of religious dissenters can override civil rights and public-accommodations laws—the rule that emerged is simply that we must speak civilly toward one another. The merits? They can wait for another day. This is a case largely about civility, or as Kennedy puts it, “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Recall that Kennedy warned us that this was his gnawing concern when he wrote in Obergefell v. Hodges, his landmark marriage-equality ruling from 2015: “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.” Instead of an open and searching debate, we devolved into denials of service, civil rights actions, and a discourse more polarized and zero-sum than ever.

One can, and probably should, fault Kennedy for kicking the resolution of real issues down the road again. One can also fault the justice for turning a dispute over two important constitutional values into a factual debate over whether a Colorado commissioner’s statement that “despicable” rhetoric about “freedom of religion” has been “used to justify all kinds of discrimination throughout history,” including slavery and the Holocaust. Is that anti-religious animus, as the court asserts, or just a verifiable truth? Kennedy seems preoccupied by the fact that “the record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the commission’s decision did not mention those comments, much less express concern with their content.”

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It almost feels as though had someone apologized for the language, the anti-religious “hostility” on display would have been cured. Since nobody did, concludes the majority, “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.” Look, in contrast, at the baker’s language when he denied service to the two men who wanted a wedding cake: After sitting down with them for a consultation, Phillips told the couple, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” Since the baker spoke kindly, in Kennedy’s view, only he sustained a dignitary injury—not the couple he turned away.

One of the public virtues Kennedy commendably prizes above all others is civility in public discourse. But constitutionalizing major civil rights disputes based largely on who spoke more rudely to whom feels an awful lot like pandering to the Suffering Olympics discourse that serves only to convey that whoever feels the most dignitary injury will ultimately prevail. The reason the court agreed to hear Masterpiece Cakeshop in the first instance was to resolve that impasse. Rooting a decision in whose words were most hurt-y to Kennedy’s ears adds nothing but confusion. It also triggers the kind of public backlash that has allowed a public school teacher to insist that his religious rights are offended by calling transgender students by their names, and emboldened a state lawmaker in South Dakota to claim that businesses owners should be allowed to turn away people based on race if their religion is offended.

Perhaps it’s inevitable that in the Trump era, the only constitutional values that seem to matter anymore involve speech and religion. They have become so fungible that three of the biggest cases of the year—Masterpiece Cakeshop, NIFLA v. Becerra, and the travel ban—turn on how much legal force to give to the words we use around religious discrimination. Masterpiece Cakeshop isn’t the only limp mess that turns on some hazy speech, religion, dignity, civility, and feelings. It’s also the news coverage and the public reaction that take that mess and turn it ever messier. With all due respect to Kennedy’s dreams of a more courteous and respectful polity, the only legal rule that emerges from Masterpiece Cakeshop is that if everyone can couch their animus in politeness, someday a real doctrine may appear.