Many of my contributions to this blog will riff my forthcoming tome on the Constitution and its federalism, cleverly entitled The Upside-Down Constitution. The publisher’s (Harvard University Press) release date is February 15. However, you can already pre-order the book on Amazon.com. What exactly is “upside-down” about our Constitution? Keep reading to find out.
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 prevail.
Kennedy’s defense of freedom of religion is strictly formal: “The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed.” When it comes to the substance of the legal argument, he notes that Colorado, at the same time as the Masterpiece Cakeshop case, had considered several cases involving “other bakers with objections to anti-gay messages who prevailed before the Commission.” Kennedy does not disapprove. He notes, too, that this case started before Obergefell installed homosexual marriage as a civil right for homosexuals and the law of the land, against the previous constitutional arrangements. Both notes show Kennedy would look favorably on punitive actions against Jack Philips or anyone who acted as he did.
Indeed, Progressives might consider it urgent to create a test case specifically for Justice Kennedy’s rhetorical sensibilities—for, as we say, he who hesitates is lost: President Trump might get to replace one of the four Justices who indicated in Masterpiece Cakeshop that they’re against the expression of conscience as understood by the Christian plaintiff. Political calculations may thus bring us back to this problem sooner than we like—sooner than the Court itself has suggested it would like.
Meanwhile, the press is already taking the civil rights vs. First Amendment rights to its inevitable partisan form. The Christian plaintiff is a bigot or anti-gay in the liberal-Progressive press. In the conservative press, the totalitarian tendencies of the Progressives have been checked—but for how long and on what grounds? There is no common ground with any political purchase. We are divided over how we understand human dignity. Nor is it the case that we experience our dividedness as clarifying. The “legislating morality” social conservatives are looking to stand on the ground of freedom from government action and the “get your laws off my body” liberals are eagerly legislating morality, if from the bench.
Perhaps this confusion merely reflects the change in the relative balance of forces, to speak in terms of warfare, since Justice Kennedy’s opinion in Obergefell.
Masterpiece Cakeshop settles nothing but the next step in our constitutional crisis: The First Amendment. This is fitting, since the people who shape public opinion lack agreement on what its purpose. We have no politicians famous for their insistence on its place in America’s constitutional architecture, despite the crises in which the First Amendment is involved, whether in the press, in social media and digital technology more broadly, or in the various institutions that become public scandals every few months.
Since the people do not know what it means, beyond a sense that they are free to express themselves, individually and collectively, it follows that they are not united in asserting a specific understanding that could calm national politics down the way only consensus can. The confusion of the people, moreover, is both an insult to activists who hold to some specific principle and an unconquerable temptation to push the moment to its crisis. Masterpiece Cakeshop could not be the end of the quarrel even if the Court had any intention of helping the nation calm down rather than go nuts.
But the Court itself is a major cause of the hypertrophy of self-expression beyond any clear and limited understanding of freedom of speech. Given the many social, political, and commercial implications of self-expression and our natural propensity to disagree and take offense, it was inevitable that we would come to live some part of our lives even as consumers and performers on social media in hateful, warlike, destructive ways. There’s no other way to express ourselves, that is, to be creative, since we always create something out of something else and get something new by breaking something old.
Much of this we owe to the Philosopher-King himself, Justice Kennedy. His ideas about individualism, from Casey to Obergefell, have given Americans something they truly want, an easy way to avoid the political conflicts questions of human dignity inevitably create. More than Oprah, he’s about self-love and self-creation and he has led the nation in that direction for a generation. But all this has come at a serious price. Attacks on freedom of religion now will create more hatred in America. Christians will accept rulings on abortion, however evil they may think it, far easier than rulings about what to believe, for in this latter case, as soon as a new belief was legislated from the bench, punitive actions hounding people out of their livelihoods started.
Further, attacks on freedom of speech are now common in our political discourse, so we have no common ground on which to dispute any of the questions that stir partisans to hatred. We have no criteria we can accept as authoritative as to when civil rights and when freedom of religion should win in a case. Far less can the people involved stop quarreling—we do not have any experience of our freedom of speech except as conflicts to which we can assign no limits prior to engaging in them.
Digital technology has given each one of us a way to express ourselves. Thus, we’re fast learning that what we express when we express ourselves will inevitably include principles that we live out in our daily lives. We express ourselves spontaneously on social media and the results are quite scary. This is because self-expression is not primarily individual, but collective. For a long time, we have ignored the need to agree and disagree in political ways that leave us with private lives of our own. Social media has no deliberation built in, only algorithms for censorship that inevitably strike us as tyrannical, both when we want to turn them on our adversaries and when we fear they are being turned on us.
You might not see the connection between conflicts about Twitter or Facebook censorship and a gay wedding, but consider that a cake is social media, too. We cannot stop even with cakes—we use them to express ourselves to each other, to desire and obtain approval and support. We also sue each other over cake, when we don’t get the response we want to our acts of self-expression. Is this reasonable? Probably not. Can we stop? Probably not. A cakeshop is not the self-expression and freedom of speech that will break America, but the internet just might be, and as this essay attests, the virtual image of the cake—the meaning of the symbols involved in the cake war—that’s now part of the rhetoric of digital America. As with anything else, it will be caught up in our digital wars.
We cannot wish away this coming crisis. We are about to learn in a fearful way that the First Amendment is the cornerstone of our civil peace—by seeing it endangered. As more and more of life is transformed into digital life, where self-expression in every First Amendment way is the dominant mode of action, terrible conflicts will emerge.
These days, kids who disagree with each other about the silly symbols involved in their computer games are not above calling 911 to get SWAT to maybe kill someone. That’s already happened. Adults will not be above using the federal government, and not just SCOTUS, to persecute their adversaries in their own digital wars over symbols of human dignity. We may think we’re still at the stage of turning the real world digital by fighting about things online. But digital will hit the real world, too, as with SWATing.
Not a day after I wrote this essay, child-activist David Hogg became the first victim of a SWATing that suggests—but this is not confirmed—political motivation. The perpetrator is as yet unknown, as is the motive, but happily no one was harmed in the incident. This should suffice, however, to suggest the gravity of the things we will face. We may be stumbling unwittingly into a new form of political terrorism, which leverages both digital technology and the police power of the state, but completely bypassing anything like ideology, politics, or association. This should worry us enough to think through our predicament and devise some ways to civilize digital America.