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Masterpiece Cakeshop as a Republican Sermon

In “The Supreme Court as Republican Schoolmaster,” Ralph Lerner showed how justices in the early Supreme Court tried to educate the people in the civic virtues needed for a republic. They felt the truth of Alexis de Tocqueville’s claim that “The power of Supreme Court justices is immense but it is a power springing from opinion. They are all powerful so long as the people obey the law. They can do nothing when they scorn it.”

As a result, when justices rode circuit, they were conscious of the importance of shaping popular opinion. Their charges to juries in cases where they sat as trial judges thus “were a cross between a political sermon and a speech from the throne.” They ranged far from the specifics of the controversy to describe the qualities a citizen needed to assure that the republic remained stable and prosperous. These virtues included self-restraint, honesty, industry, and prudence. Note that these jury charges did not make much law: their legal content was bound up in the particulars of a case soon forgotten. Their more important function was to sway the minds of the audience to embrace the essentials of republicanism.

This is the perspective that makes sense of the Supreme Court’s decision in Masterpiece Cakeshop. There the Court avoided the broad free speech and free exercise claims and ruled instead very narrowly for the baker on the ground that some members of the Colorado Human Rights Commission had made anti-religious statements in dismissing the baker’s arguments. The majority opinion made little law, and it is hard to imagine that many decision makers will be so foolish as to repeat the kind of sentiments expressed by those commissioners.

But it did give Justice Anthony Kennedy the occasion to sermonize about what he sees as virtues essential to the modern republic: the dignity and respect that people are owed in both the identity of their sexual orientation and their religion—the kind of dignity that the commissioners offended.

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.

It is striking that six justices of widely varying views signed onto his opinion and the two dissenters signaled their substantial agreement with these general sentiments. The justices may be worried that the culture wars are a threat to the cohesion of society and ultimately their own authority. That this case makes little law is actually part of the point: a decision more clearly in favor of one side or another would distract from the audience’s attention to the sermon.

I am not defending the Supreme Court’s view of its function, but across two centuries this sermonizing function is similar, even as what the Court sees as essential to republican virtue has changed.

Reader Discussion

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on June 07, 2018 at 09:34:10 am

Your notion is simply absurd, that a 19th century Justice sermonizing a jury with dicta on republican virtue is tantamount to the modern Supreme Court (since the late FDR Court) rewriting the constitution so as to render it a weapon of social justice warriors.

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Image of Pukka Luftmensch
Pukka Luftmensch
on June 07, 2018 at 11:27:04 am

Not only that, McGinnis (unknowingly?) proves that the Black Robes were not "reading the Law" but rather acting as policy proponents.

It is the responsibility (and authority) of the Legislative to advance policy prescriptions.
Should The Robes find themselves in need of sermonizing, let them do it on the rubber chicken circuit not the Federal circuits.

Also, please note:

"At the same time, the religious and philosophical objections to gay marriage are protected views and in SOME instances protected forms of expression."

doubtless, it will be these same Black Robed philosophers that will determine the when, where and how of the SOME.

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gabe
on June 07, 2018 at 16:23:22 pm

Amendment I

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Simply put, no person can be coerced into serving in any capacity that would force that person to violating a tenet of their Faith.

"It is striking that six justices of widely varying views signed onto his opinion and the two dissenters signaled their substantial agreement with these general sentiments."

True, and for this reason I would like to change my previous statement to seven lukewarm Justices.

In regards to “Animus and Adjudicatory Bodies”, one could make the argument that the 7-2 vote is reflective of the degree to which the Supreme Court Justices believe The Word of God Has overstepped His reach when reflecting The Will Of God The Father, in regards to respect for The Marital Act and The Sacrament of Marriage and thus, the degree to which The Supreme Court Judges affirm that God, The Most Holy And Undivided Blessed Trinity, (Treaty of Paris), The Author Of Love, of Life, and of Marriage, Is The Author and thus Endower of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness.

Seven Supreme Court Justices appear to be lukewarm with some degree of animus, and two appear to have enough animus that they deny The Author and Endower of our unalienable Right to Life, to Liberty, and The Pursuit of Happiness, rendering onto Caesar, what belongs to God.

Whoa to us! Godspeed!

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Image of Nancy
Nancy
on June 07, 2018 at 16:27:09 pm

That should read:
Simply put, no person can be coerced into serving in any capacity that would force that person into violating a tenet of their Faith.

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Image of Nancy
Nancy
on June 08, 2018 at 15:44:10 pm

Something to think about in the days to come:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2798246

HT: http://mirrorofjustice.blogs.com/mirrorofjustice/2016/06/is-there-a-catholic-way-of-making-hamburgers-at-your-local-mcdonalds.html

Godspeed!

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Nancy
on June 09, 2018 at 11:33:56 am

"he Most Holy And Undivided Blessed Trinity, (Treaty of Paris),"

I'm not sure if you want to go there with the Treaty of Paris which was made with the "Christian" Nation (Great Britain) against whom America successfully rebelled. We could site the Treaty of Tripoli which claims America's government is not in any sense founded on the Christian religion.

Likewise, the Declaration of Independence was authored by a militant unitarian (Jefferson) and at least three of the drafting board (including the author plus J. Adams and Franklin) were unitarians.

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Image of Jonathan Rowe
Jonathan Rowe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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