The Supreme Court Punts

The outcome of Masterpiece Cakeshop v. Colorado Civil Rights Commission didn’t surprise me. Our political emphasis on anti-discrimination has arrived at a dead end, especially where LGBT issues are concerned. The effect is not greater justice, but diminished solidarity and heightened social conflict. The Supreme Court lacks the legal or political imagination to move beyond this dead end, so it punted. 

Justice Anthony Kennedy has built his sexual liberation jurisprudence on the principle of civic niceness. Nothing arouses his attention more than what he deems expressions of “hostility” that treat this or that group as “social outcasts.”

Only an ignorant person could fail to see that over the last half-dozen years it is the opponents of sexual liberation who have become the outcasts. The rich and powerful have adopted the LGBT agenda as their most beloved cause. Corporate America lends its wealth and power. Higher education does as well. Just days before the Supreme Court handed down its decision, the FBI and CIA announced June 2018 as “LGBT Pride Month.”

This triumph has given the most ardent advocates license to express punitive sentiments toward the unrepentant rabble on the “wrong side of history”—the deplorables. In advance of what he assumed was Hillary Clinton’s inevitable victory, Harvard law professor Mark Tushnet speculated about “how to deal with the losers” in the battles over sex. He recommended taking “a hard line”—which he noted had been a winning strategy with defeated Nazis after 1945.

Punitive sentiments were in evidence in the public hearings of the Colorado Civil Rights Commission, which judged Masterpiece Cakeshop owner Jack Phillips to have violated that state’s civil rights law by refusing to bake a custom cake for a gay wedding. One commissioner described Phillips’s appeals to religious liberty as among “the most despicable pieces of rhetoric that people can use.” This remark got Kennedy’s attention, leading to a ruling that urged the Colorado Civil Rights Commission to adopt a “fair and impartial” approach to such cases, one presumably not tinctured by anti-religious animus.

It’s easy to deride Kennedy’s reliance on the “hostility” test. Since the 1950s, our society has developed a multi-faceted legal and cultural apparatus to combat discrimination. These policies are not treated as objects of reasoned debate, as critics of affirmative action quickly discovered. Anti-discrimination has been invested with powerful moral significance. It has become the single most important social and cultural cause for our leadership class.

So Kennedy has always been deluded. Every use of anti-discrimination rhetoric necessarily demonizes those who do not join the chorus of affirmation. They are latter-day Orval Faubuses, enemies of what makes America noble and righteous, “haters” on the wrong side of history.

It was inevitable that the institutionalization of the sexual revolution would be carried forward by appeals to the postwar anti-discrimination tradition. And that tradition is loaded with explosive moral condemnation of any who dissent. The Colorado commissioner who implied that Jack Phillips was “despicable” was simply following through on the cultural logic. Kennedy is kidding himself if he thinks he can use the postwar anti-discrimination tradition to empower the LGBT agenda—while at the same time preventing religious believers and others from being attacked legally, economically, and culturally.

Kennedy is stuck. The Colorado case follows a general trend. As Charlotte Allen has documented in our pages, the LGBT anti-discrimination skirmishes are very different from the battles of the 1950s and 1960s, when powerless black Americans fought against powerful interests to gain their rights. Now, those claiming discrimination are almost always well-to-do, well-educated, white-collar white men and women. Those who they claim discriminate against them are lower down the social ladder. In today’s anti-discrimination battles, the great and the good bring their power to bear on the little people who haven’t gotten the progressive memo.

Kennedy will likely retire soon. But his problem will not go away. Two days before the Masterpiece Cakeshop decision was handed down, I attended my thirty-fifth college reunion. Most of my classmates, now in their late fifties, are part of the liberal establishment. I was struck by their anxiety. They’re worried that things are coming apart, and they want to think about how to reknit the social fabric.

I fear they haven’t taken the full measure of the challenge we face. The anti-discrimination imperative came to the fore at a time when racial discrimination was vicious and widespread. In 2018, our crisis is very different. It is a crisis of solidarity, as my classmates (and Kennedy) intuit. It is a crisis exacerbated at every level by anti-discrimination law and rhetoric.

That two gay men in Denver can bring to bear the full power of the state against a baker who does not wish to bake them a wedding cake is the height of absurdity. The gay couple do not belong to a vulnerable class of Americans. IRS data show that male-male married couples filing jointly have dramatically higher family incomes than other married couples, to say nothing of the disintegrating working-class families who don’t enjoy the benefits of marriage. Empowering a segment of the upper class to beat up on those who don’t approve of their sex lives is a recipe for social fragmentation.

Unjust discrimination is just that—unjust—and a decent legal regime seeks to minimize injustice. But political wisdom is about more than fighting discrimination. It also involves building and sustaining civic friendship, our most pressing challenge right now. We must jettison our nostalgia for the anti-discrimination project, which no longer benefits ordinary people, but now is almost entirely a means for our elites to congratulate themselves and justify their status.

R. R. Reno is editor of First Things.