You may have seen the news on March 5, when the State of Colorado Civil Rights Commission decided to drop the action it had taken against Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado. This was not the original allegation of discrimination that the Commission had received in September 2012, when two gay men asked Mr. Phillips to design their wedding cake and he declined for religious reasons. Phillips took that case to the Supreme Court and won last summer.
This was a different case. On the very day (June 26, 2017) the Supreme Court agreed to hear Phillips’s lawsuit against the Commission over the same-sex marriage incident, a transgender individual had phoned Masterpiece and asked for a cake, pink on the inside and blue on the outside, to commemorate a gender transition. Phillips said no. It was obviously a set-up. The person filed a discrimination complaint with the Commission a few weeks later.
Three weeks after the Court’s 7–2 decision, the Commission delivered its second verdict. “A claim of discriminatory denial of full and equal enjoyment of a place of public accommodation has been established,” the Commission wrote in its letter to Masterpiece. Phillips was thereby ordered to begin “compulsory mediation” with the transgender complainant.
Apparently, the Supreme Court didn’t alter the course of the Commission one bit. And that leads us to why the Commission dropped these second charges against Phillips last month.
When interviewers ask Jordan Peterson why he opposes laws against hate speech, he gives an interesting answer. The real problem isn’t the fuzziness of the line at which speech becomes hateful, or that banning hate puts traditional beliefs under a perpetual cloud of suspicion. Those are questions about hate itself, about what it is. Peterson shifts to a “who” point: If you pass hate laws, the people who end up enforcing them are the very last people you want wielding that power. Individuals asked to judge human interactions, to examine motive, intent, and social mores, must be prudent and neutral, like Lady Justice with her blindfold. The people who sit on hate tribunals, the ones ready to punish the haters, are anything but neutral.
Peterson’s analysis of the perils of laws against hate speech is not widely known. Journalists, most of them liberal, don’t pursue it. They stick to the idea of hate crimes and ignore the particulars of their adjudication. It’s a common liberal habit, one that trades in abstractions, not practicalities, envisioning a civil rights commission, diversity training sessions, and bias response teams as benign, ideal creations. We need them to ensure that everyone is treated fairly. Who could refuse such an obvious good? Surely the commissioners and consultants and session leaders will remain impartial and unbiased. After all, their raison d’être is to eliminate partiality and bias. That’s what liberalism is for.
So, all we need to do is set up the system and staff it well. Peterson’s worry seems beside the point.
But what kind of person serves on a human rights commission? Who enjoys working in human resources as Vice President of Tolerance and Inclusion? Who wants to be a Dean of Diversity? Think about the requirements of the job and the personality that wants to carry them out.
Our anti-hate official has a fair degree of confidence in his own discernment. He is there to prohibit discrimination, root out prejudicial attitudes, and apply discipline. In the first Masterpiece Cakeshop case, the Commission didn’t just find Phillips guilty and levy a fine. They ruled that he must make same-sex wedding cakes, his staff must undergo diversity reeducation, and the business must file quarterly compliance reports. This is exactly what Michel Foucault meant by the word “Surveiller” (“watch over, monitor, discipline”) in the title of his most famous book.
The anti-hate commissar is eager to probe people’s private thoughts and personal beliefs. He doesn’t hesitate to ascribe base motives to one of the parties involved in the dispute. The Commission stated in its letter to Masterpiece in the second case that “the refusal to provide service to the Complainant was based on the Complainant’s transgender status.” This was a tendentious reading of the situation. Phillips happily sells goods in his store to anybody, gays and transgender persons included, as long as customers don’t ask him to affirm beliefs contrary to his religion. The complainant could have entered Phillips’s store, chosen any cake on the shelf, and walked out with it. She wanted something more. The Commission’s letter quoted the Complainant telling Masterpiece that she requested a custom cake that would “celebrate a sex change from male to female.” Phillips’s actual intent was to preserve the integrity of his conscience, but that didn’t matter. His intent was simply anti-trans, or so the commissioners said.
Finally, the diversity dean assumes that racism and homophobia are widespread problems in American society, colleges, and workplaces. If that weren’t true, no complaints would arise, and those offices wouldn’t exist. But they do. That means the anti-hate officer has much more than a job—he has a mission. A campus diversity officer monitors the social climate of the school, but his actions reverberate beyond the walls, at least in his mind. Reacting to a racist graffito incident by putting students through sensitivity seminars contributes to a worldwide movement of anti-discrimination.
It’s a heady role that suits only certain kinds of people. It favors suspicion over generosity, resentment over gratitude, and empathy for victims over due process. It cultivates self-righteousness, too, and the self-confidence that permits one to take on Robespierre’s nickname, “l’Incorruptible.” The entire system of anti-discrimination rigorously selects people like this. It is a magnet for grievance hounds with identity politics viewpoints.
The Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil RightsCommission put a spotlight on this problem. The Court noted that in such cases, “The law must be applied in a manner that is neutral toward religion.” In highlighting application, the Court put front and center the “who” question: the people applying anti-discrimination laws, the commissioners. The Court’s decision didn’t turn on Colorado’s anti-discrimination law itself, or the First Amendment rights of Mr. Phillips, but “the Commission’s treatment of Phillips’ case.”
And the Court identified what Phillips’s defenders emphasized during his long ordeal: anti-religious bias. Commissioner Diann Rice’s remarks during a July 2014 meeting on Phillips’s first case said it all:
Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust. . . . I mean, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me, it is one of the most despicable pieces of rhetoric that people can use—to use their religion to hurt others.
The Court took this as clear evidence of “official . . . hostility to religion.” Rather than address the lawfulness of Phillips’s refusal to provide the same-sex cake, the Court cited the hostile attitude of the Commission and ended the case.
Hostile language has ended the second case, too. In February, Phillips’s attorneys at the Alliance Defending Freedom uncovered statements made by commissioners following the Supreme Court decision. At the June 22, 2018, meeting, one of them said, “I support Commissioner Diann Rice and her comments. I don’t think she said anything wrong.” Another commissioner added, “I also very much stand behind Commissioner Rice’s statements. . . . I was actually proud of what she said, and I agree with her. . . . I’m almost glad that something the Commissioner said ended up public and used, because I think it was the right thing.”
Let those words sit. It was two weeks after the Supreme Court declared that the commissioners violated Phillips’s religious freedom because of hostile statements made in the course of their decision-making. And the commissioners responded to their defeat by reiterating the hostility!
Which is worse, the arrogance or the stupidity? Naturally, as soon as ADF had these fresh statements in hand, Phillips couldn’t lose, and that’s why Colorado dropped the case. Here was self-congratulatory anti-religious bigotry unbowed, proudly and self-consciously defiant—exactly as Peterson warned. The commissioners, supposed experts in the legal system, saucily spurned the highest court in the land.
Didn’t the commissioners realize their response would once more disqualify them as rightful arbitrators? No, they were so fired by the spirit of anti-discrimination that they had little respect for legal boundaries, much less consciousness of their own animus. They are, indeed, the last people you want sitting in judgment about cases of discrimination.
The obvious solution—kicking them out and bringing judicious minds in—doesn’t work. The whole framework of anti-hate legal regimes creates just these kinds of inquisitors and scolds. A circumspect person who rejects identity politics won’t last long on these commissions and tribunals. Identity activists will push for his removal, or tensions with other members will pressure him to resign. Maybe a sane person doesn’t want the job in the first place. In creating anti-discrimination offices with binding authority, leftists have established a system that, in the abstract, appears above-board, just, and impartial, but draws people only from their own ranks. I suspect that this is not an error. It is a downright canny strategy.
Mark Bauerlein is senior editor of First Things.
Photo by Ted Eytan via Creative Commons. Image cropped.
