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Masterpiece Cakeshop and the Crisis of Identity Politics

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.

Reader Discussion

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on June 07, 2018 at 10:03:40 am

Titus:

Nicely done!

Quite right that the tendency to "self-expression", first endorsed by Kennedy but midwifed by Douglas, fails to recognize that this *expression* is expressed toward some other and thus becomes a collective form of communication and clearly, judging by the reactions of those who do not gain the approbation they desire, transforms itself into fodder for all manner of dysfunctional intercourse (no pun intended).

Regrettably, as we, the citizens, are unable to comprehend the scope AND limits of our First Amendment protections, we are forced to rely upon the questionable vagaries emanating from the Temple of the Black Robes. Yet, I would suggest that these *vagaries* are quite "purposive", that there is a telos in sight, and, further, that these judicial determinations (such as they may be artfully termed) are further evidence of the Judiciary's inability / unwillingness to perform their judicial duty. i.e., "to read the Law" rather than to create it.

Most significantly, what we continue to observe is the retreat from politics, properly understood, that almost much of current SCOTUS cases represent. In short, we are free to engage in self expression, to express OUR-selves BUT only within the confines circumscribed by the pages of a legal size scrap of paper.

The question then may be: who gets more play room AND who decides the play area?
It would appear that the Black Robes are also to determine this.

What next: Will a doctor be compelled to perform trans surgery who opposes it?
Will a parent be compelled to pay for a child's trans operation?

Limits, Mr. Kennedy, Limits, please!

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gabe
on June 07, 2018 at 10:43:12 am

Excellent essay that does capture the heart of the issue! The author astutely predicts that "test-cases" are already being actively engineered and constructed; its unclear if he ignores the almost certainty that Masterpiece itself was such an engineered and constructed test case - I would suggest the high likelihood that these two gentlemen didn't walk into that cake shop with exactly clean hands, or with lack of foreknowledge of Mr. Philips' religious propensities.

In my view, this decision is more than a very narrow win for religious liberty, and not simply a loss for the CCRC, as it is being portrayed left and right. My impression is, not only does the Masterpiece ruling, "entitle[d] a neutral and respectful consideration of claims in all the circumstances of the case. (Pp. 9–12)" of "deep and sincere religious beliefs", but it compels it. Furthermore, I would argue that a good case can be made that it also implicitly places the burden to such and similar commissions to demonstrate this consideration to an extent greater than merely a record void of "elements of a clear and impermissible hostility toward the sincere religious beliefs".

If understanding SCOTUS is often-times like reading tea-leaves, it should not be too much overlooked or discounted, that SCOTUS, after six months of silence, suddenly chose to rule on Azar v. Garza simultaneously as Masterpiece.

In my view, it very much is, (and was meant to be), both in Justice Kennedy’s measured, and Justice Thomas’ plain and straight-forward language, a shot across the bow, for those predisposed to enforcing so-called, "civil rights" and “tolerance” utterly uncivilly and intolerably.

I acknowledge I am of the "Right" (politically), so too, do I acknowledge that however overly optimistic (or naïve) it may reveal me to be, I hope I am also right in this particular interpretation. But one thing is for certain, this is not the last word SCOTUS will find itself forced to offer on this issue.

Source of quotes: https://www.supremecourt.go...

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Paul Binotto
on June 07, 2018 at 12:14:03 pm

No doubt, identifying human persons according to sexual desire/inclination/orientation, sexually objectifies the human person and denies the essence of the human Dignity and worth of the human person as a beloved son or daughter.

Identifying human persons according to sexual desire/inclination/orientation is consistent with atheistic materialism, which is the antithesis of a Nation that professes that God Is The Author of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.

"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."

In all cases regarding our Constitution, Atheistic Materialism serves in opposition to our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, and is thus a violation of both the spirit of our Constitution, and The Spirit of The Law.

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Nancy
on June 07, 2018 at 13:19:07 pm

In addition his Casey doctrine of identity-invention being the heart of liberty, AK really is all about requiring the ceremonial equal-dignity recognition of said identities. Among the several important things happening in his Lawrence majority, which will go down as his key opinion, that is the most important one.

Technically, in this case, he puts forth a doctrine (that feels new or very rare to me, despite the citations of precedent) that indicates that state actors cannot, while enacting a (otherwise constitutional) law that might adversely impact free religious exercise, say anything that evinces obvious amimus towards religion. Titus is right to connect that to his previous jurisprudence. The only good point in Ginsburg's dissent rightly questions the practical applicability of this doctrine.

Titus does verge here on leading the reader to think this was AK's only rationale (I agree that it is surely the one most important to AK) for striking down the order/penalty given Philips, when he did clearly state another rationale: the CO Commission did permit other bakers to deny custom-cake service to (a test-case fishing guy) William Jack; that means that in the Masterpiece case they did not permit a personal-conviction-exemption to Phillips, whose conviction was clearly expressed in religious terms, whereas in these other cases, they did permit such an exemption to bakers, ones who held a not-apparently-religious conviction, to not put a message they found offensive on their cakes. So, the process of exemption-granting doesn't treat religion with neutrality. That's evidence of animus that goes beyond mere words said by a couple of members of the Commission, into the very enforcement of the law.

Tweak the CO law, perhaps so that no conviction-related exemptions are available to anyone (at least if any service-denied person can claim they were discriminated against on the basis of creed OR sexual orientation ), and then you can apply the penalty to future instances of Phillips-type refusal. 'Course, you might force a few bakers to bake Leviticus-paraphrasing "God hates gay sin" custom cakes (like the ones Jack Williams requested) against their will, for the sake of never ever having anyone deny a gay couple a custom cake for their wedding, but hey, gotta take one for the cause. In that scenario, bakers would still be able to deny a conservative a custom cake of Reagan, a commie a custom cake of Lenin, or a Nazi a custom cake of Hitler, since neither creed nor sexual orientation would be involved. Future justices could earn their pay deciding borderline cases, like whether a custom cake request for an image of Nation of Islam founder Elijah Muhammad ("whites = devils") would have to be baked by an offended baker, so long as "creed" is still in the list of protected classes in the CO law. Fun stuff.

What little among the complex distinctions arising from William Jack's actions that is worth taking seriously can be found in Gorsuch's concurrence.

I think the other thing we should say about AK's motives in this decision, is that he thinks it is his way of making good on his wild promise in his Obergefell opinion that no danger to religious liberty would result from the principles and logic he laid down there.

Thomas mentions the evident failure of that promise in his concurrence, one joined by Gorsuch. In the main, that concurrence demonstrates that above and beyond free exercise concerns, the case for a free speech ruling in Phillips's favor was entirely solid had the other justices chosen to get behind it. Very convincing, and a tad disturbing that at least Alito didn't join it.

I deeply hope Justice Kennedy will eventually be widely understood to have been what he has been, a man who did great harm to our constitutional order, far too much to put to any kind of rights through weak n' narrow opinions like this; still, there is some justice in the way he tongue-lashes the two members of the CO Commission who said patently idiotic and hateful things in public about Jack Phillips's religious reasons for his action.

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Carl Eric Scott
on June 07, 2018 at 13:19:20 pm

I kind of wonder who is going to be discriminated against next 'for religious reasons'. I suspect that mixed-race couples are next. But it's *good* when inferior people get that treatment, right?

I also wonder what will happen when a Muslim discriminates against a Christian, and how long the shop will last in the ensuing riot. After all, Christians are the majority and part of the ruling class. Especially if the Christian is white. I suspect that the Muslim is going to lose that court case.

I also suspect that I'm going to be told here that there are good reasons for discriminating againt non-white, non-straight people and non-Christians, too.

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excessivelyperky
on June 07, 2018 at 13:45:27 pm

Don't know what country you've been living in, but it most certainly can't have been in post-modern United States, most especially since Nov. 2016, for you to characterize the reaction to the example you describe in this manner. You've mastered exceessivelyperky; how about for your next trick, you try mastering excessivelyrealistic?

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Paul Binotto
on June 07, 2018 at 14:03:41 pm

What I will tell you is that the First Amendment flatly forbids the federal government from making any law (and presumably it forbids the Supreme Court from issuing any decision) respecting the establishment of religion or prohibiting the free exercise of religion or abridging the freedom of speech.

Beginning in the Wilson administration, Supreme Court has delighted in making a hash of the First Amendment and we are now faced with the situation where the Supreme Court thinks the inferior federal courts have the ability to decide on a case by case basis whether the rights of the protected classes the Supreme Court has created since 1964 out weigh the plain language of the First Amendment and the equal protection clause of § 1 of the 14th Amendment.

I think that the Supreme Court is incompetent to make such decisions and that the Court as it now stands must be reformed by Congress.

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EK
on June 07, 2018 at 14:03:56 pm

Perky lives in a bloody delusional dreamworld where all is horrible - all that is that is or may be ascribed to those vicious nasty little white bastards that keep fouling up the works.

The only thing that surprises me about this perky modern Cassandra (not that she is an outlier, mind you) is that there was no mention of those meanies that won;t let her slaughter an unborn human child.

BTW: If this perky little know-it-(and hate it)-all paid any attention she would observe that it is not Muslims that are being denied their "rights" to expression but rather those who profess faith in Christianity. All must kowtow to the *perkiness* of the delusional Progressives.

Take a hike, smell the roses and above all else, Open your damn eyes and actually view the world as it is.

As for me, I am going to once again discriminate against those little blue buggers - the Smurfs.

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gargamel rules smurfs
on June 07, 2018 at 14:07:44 pm

Fanatics recognize no limits, you know that.

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EK
on June 07, 2018 at 14:07:53 pm

I had always wanted a bumper sticker that simply said "The Free exercise thereof.."
Perhaps, all those Proggies riding in their crummy little Priuses and Subarus would get the hint.

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Guttenburgs Press and Brewery
on June 07, 2018 at 14:17:09 pm

Carl:

You are splitting hairs here - re: Jack williams. It had nothing to do with the "non-religious" refusal; rather, it had ALL to do with the "message content" that the commission supported. In the one case, it could be argued that the baker was against gays (as clearly he was); in the other, the message being REFUSED was anti-gay.

Perhaps, that had something to do with it? Let us not inflate a mere preferential action (and a hostile one at that) into a constitutional doctrine. And as phillips attorneys raised this issue, it would seem impossible for the Great Mystery Man (as someone termed him) to avoid it.

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gabe
on June 07, 2018 at 17:06:26 pm

"I also suspect that I’m going to be told here that there are good reasons for discriminating againt non-white,..."

Indeed, excessivelperky may be on to something here as evidenced by this wherein we find that the authorities so abuse non-whites that fully 20% of Federal Prisoners are illegal (and presumably UNdocumented) aliens:

https://townhall.com/tipsheet/katiepavlich/2018/06/07/dhs-illegal-alien-incarceration-n2488455

Now that seems like absolute proof that excessively perky is correct and an astute observer of current affairs, right? right???

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gabe
on June 07, 2018 at 18:39:13 pm

Techera must follow-up his prior commentaries, "Fahrenheit 451 and the Sociology of Tyranny" and "Masterpiece Cakeshop and the Crisis of Identity Politics." He should title the sequel, "Justice Anthony Kennedy, the Political Crisis of Jurisprudential and Social Tyranny."

By use of navel-gazing philosophy worthy of Rousseau and the French philosophes (who rationalized a path to the French Revolution), Justice Kennedy made a romanticized mess out of the Fourteenth Amendment and the constitutional law of federalism. Using pop child psychology worthy of Dr. Spock and Progressive historicism Kennedy blazed a path to his goal of obliterating the Eighth Amendment and badly damaged Originalism and federalism in the process. Kennedy has now turned the wrecking ball of his satanic imagination toward the edifice of the First Amendment, the foundation of our political and religious liberties and the sanctity of conscience.

And what a mess hath he made of a Masterpiece of a constitutional cake!

Perfect constitutional facts, perfect constitutional issues; perfectly shaped, baked and decorated for a perfect constitutional and political outcome defending the First Amendment against unparalleled assault, protecting endangered moral decency against commonplace nihilistic bullies and supporting social cohesion in an era of dangerous disunity.

Yet, because of the necessity of placating the Supreme Court's emotionally-confused, psychologically-conflicted, politically-schizophrenic Human Jump Ball, Justice Kennedy, the nation gets from this Masterpiece case of monumental promise nada, nothing, zilch except the promise of further assaults on religious liberty, political freedom and the right of conscience, more bullying by crypto-tyrants posing as soi disant victims and civil rights advocates, and further social clamor and destructive political cacophony.

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Pukka Luftmensch
on June 08, 2018 at 12:00:32 pm

I'm just trying to wrap my mind around the Court's (Kennedy's, Kagan's, Breyer's, Robert's, Alito's) hair-splitting.

At a much higher level, that's what Gorsuch does in his devastating (to Kagan, Breyer, Ginsburg, and Sotomayor) concurrence , both "endorsing" the hair splitting, and explaining the only way in which it could be done consistently.

I'm not recommending the hair-splitting, and I agree with Thomas's way of handling the case as a Free Speech case, which makes things much much clearer. (Not that a clearer ruling on the free exercise side was unavailable.)

As for the easy acceptance of the bakers' refusing William Jack's anti-gay messages, well of course there was no reasoning by the Commission beyond "whatever seems anti-LGBT is wrong, and whatever is anti-anti-LGBT is right!" And maybe, there was also no reasoning by the three bakers who rejected his requests, other than, the (correct) intuition that "I could get in big trouble if I don't deny service to him." But to criticize the court's logic, you have to follow it out, and accept its premises.

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Carl Eric Scott
on June 08, 2018 at 13:03:38 pm

I know, it's horrible that people get in trouble for using the N-word these days. Sad!

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excessivelyperky
on June 08, 2018 at 16:46:28 pm

Actually it is sad. It is also *sad* that people DO NOT get in trouble for using the "Wop/Guineas/Dago/Mick/Polock" word.

Apparently, however, it is OK, also, to use the "Slant" word.

I wonder why this is.

Yet Blacks may freely use the n-word. Italians may, and do, use the Wop word. Both groups use the word amongst themselves AND it is actually an affirmation of ones ethnic / racial traits.

So what we observe is a "rule" (not yet a Law) that permits only certain racial / ethnic groups to use certain words. Yikes, what a silly world.

Now for the record, I am not advocating the use of the "n", "W", etc words. They are dismissive of the targets humanity. I am only advocating some deliberation over the restrictions on speech that we currently seem to favor.

And actually what IS horrible, is that people actually THINK the "N" or "W" words. Preventing their utterance, as with so much of the "feel-good" / make a statement policy prescriptions of our SJW friends touches only the surface. Heck, it makes the SJW's *FEEL* that they are doing something and no doubt illumines for all to see, the higher moral standing of the same SJW.

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gargamel rules smurfs
on June 09, 2018 at 12:35:44 pm

Carl:
AN UPDATE:

Perhaps, Kennedy did more than simply endorse his own "animus" doctrine as you have suggested.

Here is a link to an essay by John Eastman arguing that effectively Kennedy (and other concurring opinions) has actually resurrected the "Free Exercise Clause" by insisting that *strict scrutiny* be applied to governmental actions that may be said to restrict the exercise, not just the expression (free speech) of a religious objector.

http://thefederalist.com/2018/06/07/masterpiece-ruling-truly-major-win-religious-liberty/

So yes, there may very well be more to the decision than at first meets the eye.

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gabe
on June 09, 2018 at 14:57:02 pm

Gabe, what Eastman argues is not at all clear. None of the Court's 5 opinions makes that case, despite some hopeful grumbling by Kennedy about Oregon vs. Smith. Myriad constitutional scholars (like Eastman), concurring Justices (Kagan,Thomas and Gorsuch) and dissenting Justices are all grasping for clarity and arguing with each other over the meaning of what Kennedy said. That fact is all the more reason to deplore the obtuse rationale and tenuous value of Kennedy's dangerously, needlessly ambiguous majority opinion.

Rather than uniformity and certainty, it creates yet another ad hoc (and, here, almost unintelligible) accommodation between public law and religious liberty. The result can only incite ongoing chaos at a time when legal clarity is the compelling constitutional and social need and when a clear, constitutionally-principled accommodation was readily achievable, but for Kennedy's judicial sociopathology.

Not since Taney and Blackmun has a Justice done such constitutional and societal damage.
That Kennedy's still at it gives new meaning to the phrase "the Kennedy curse."

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Pukka Luftmensch
on June 09, 2018 at 15:06:12 pm

I completely agree, here. Justice Kennedy seems not to appreciate the extent to which his idea of human dignity creates conflict.

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CHRIS LYNCH
on June 09, 2018 at 16:43:02 pm

Pukka, you may very well be correct. I offered Eastman as another alternative view of the decision.
What was absent is my own peculiar opinion of strict scrutiny. It is only as *strict* as five of the Black Robes WANT it to be and when they want it to be. Still, it is something to "grasp at" which is all that may be left to us.

To my mind, this "scrutinizing" is the bastard child of Carolene's Footnote Four in which we observed the Black Robes arrogate to themselves the right AND the (presumed) *authority* to determine WHICH "rights" are fundamental and which are simply something that must be reluctantly tolerated.

In the words of Tricky Dick: Scrutiny seems more like a "modified limited hangout" as much intended to conceal and deceive as did that infamous Plumbers unit.

After all, COTUS does say "...shall make NO LAW..."
How much scrutiny does that require. Given, however, the current state of judicial reasoning (obfuscations), it may be that "STRICT" scrutiny is all we may hope for.

I go back to our friend Mark Pulliam's essay on "The Delusion of Good Faith Judging":

https://misruleoflaw.com/2018/06/01/the-delusion-of-good-faith-judging/

and think that the image that ought to be associated with the essay is that of The Mystery Man himself (along with that collection of delusional females, RBG, The Wise Latina).

Anyway, like the rest of us, I anticipate a continuation of *interesting times.*

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gabe
on June 09, 2018 at 17:15:09 pm

"Interesting times" indeed if one considers the potential impact in upcoming SCOTUS cases 1) of the Court's new standard of "strict scrutiny" of official comments considered "hate speech" which seems to be Kennedy's most clearly articulated rationale of Masterpiece' 2) Kennedy's resurrection of Brown v. Board's 1954 "stigmata" criterion for rejecting as inherently invidious any public services discrimination against Gays; and 3) Kennedy's overlooking the denial of Due Process and Equal Protection for Masterpiece Cakeshop in the administrative hearing before a lay panel (including Gays) which Colorado law FORCED upon it in lieu of a trial before a judge or a jury of its peers.

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Pukka Luftmensch
on June 09, 2018 at 17:32:23 pm

Yep, and *scrutiny* like many a bastard child is quite susceptible to all manner of abuse not the least of which is attributing blame to the bastard for the sins of others, i.e. The Mystery Man and his obsession with "hate speech."

I will repeat:

This nation was much better off when the overwhelming preponderance of the citizenry could not name a single member of the Black Robed vaudevilleans (sp?). Their newfound celebrity has apparently so diminished their capacity for legal reasoning such that they are now on par with other noted Hollywood celebrities.

Now back to watch my Mariners get their butts kicked by the Tampa Rays. YIKES!!!!

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gabe

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