Justice Kennedy would likely find this an easy case, if the bakers had been asked to write something or place a symbol in their design that celebrates SSM.
Two recent Law and Liberty essays addressed identity politics in our day. Neither article spoke in its favor. One argued that the demand for recognition of all identities was impracticable, therefore undesirable. The other used identity politics as a template for critiquing the Supreme Court’s decision in Masterpiece Cakeshop. Together, they pointed to the increased salience of identity claims in our culture and politics. Of course, these commentators are not the first to note this fact. Rod Dreher, for example, has argued for some time now that the Left’s identity politics necessarily will, and in fact have, engendered a Right-response, including, but not limited to, the alt-Right.  You reap what you sow, especially if you sow dragon’s teeth.
On this Fourth of July, I thought I would bring the Declaration into dialogue with identity politics. Admittedly, there is a problem at the outset with dialogue between the parties.
A Serious American Mind
Proponents of identity politics most often ignore the Declaration. When they do speak of it, two apparently conflicting attitudes inform what they say. The stirring claim that “all men are created equal” is said to be sham statement, in reality restricted to white males, while, in the next breath, the document is said to limn positive “ideals” that History will fill in, in an ever-more egalitarian, emancipatory, and inclusive way. Neither way takes the text seriously.
The Declaration, however, is nothing if not serious. Serious about politics. Serious about human action. Serious about thinking well and about truth (“we hold these truths”; “let facts be submitted to a candid world”). Serious too about change, including revolutionary change. Serious therefore about community and its right order. Serious about making itself intelligible and persuasive to relevant audiences (while also discriminating between good and bad audiences).
In all these ways, its seriousness entailed the sovereignty of reason in the soul and required the rational control of sentiment or passion, especially the political passions: love of liberty and love of justice, indignation before injustice and fear before encroaching despotism. In its seriousness, therefore, the Declaration can serve as a template for, or, as need be, comment upon, the various proponents of identity politics.
Seriousness versus Indignation
The Declaration’s seriousness about justice and injustice is an important point of contact with identity politics and its proponents. Certainly, they come to sight as very much moved by a passion for justice, or more precisely, by resentment at injustice. How so? They are indignant denouncers, often of a vociferous sort.
Now, anger is, if not the, certainly a central political passion. Not by chance was it the first passion Aristotle treated in the Rhetoric. On the other hand, his analysis of partisan claims of justice in the Politics showed that each, at best, has a partial grasp of the truth, but mistakenly takes its view as the whole. It was the special task of “political philosophy” to display, then reconcile, these shortcomings, just as it was the rhetorician’s task to curb and channel indignation with his speech.
It is instructive, therefore, to contrast the Declaration’s seriousness of reasoning and purpose, its control of passion at the service of serious action, with the passionate indignation typical of many proponents of identity politics. In this connection, one could ask Bret Weinstein (formerly) of Evergreen University or the Christakises of Yale University about the open-minded, dialogic character of the proponents they encountered.
Perhaps a step up would be to consider and compare texts, for example, the Platform of the Movement for Black Lives with the Declaration. However, here too one finds aggressive assertions followed by six groups of “Demands” that, taken together, indict (almost) all of America and American history and call for a total remaking of the country. America’s “revolution of sober expectations” (Martin Diamond), aiming to establish “new guards” for its security, contrasts rather starkly with a text that envisages “a complete transformation of the current systems”.
Many other instances could be adduced, but it is undeniable that indignation and indictment, deep indignation and wide-spread indictment, play an important role in identity politics. Confronting this fact, a dispassionate observer could be forgiven for recalling the adage that passion is a bad counselor, and the same observer could reasonably ask, what is the idea of justice, what are the facts of injustice, driving and fueling the passion? There is still a need “to give an account” of one’s views, no matter how passionately held. Facts must be adduced and ascertained, principles articulated and defended.
In connection with recent powder keg moments for identity politics, there are the awkward facts that George Zimmerman was acquitted by a jury of his peers and the FBI under Eric Holder exonerated Darren Wilson. “Hands up! Don’t shoot!” turned out to be unverified and most unlikely. The turn to “symbolic truth” afterwards was an acknowledgement of misjudgment on the plane of the particular and a petitio principii on the more general plane.
Justice against Justice?
The demands of identity politics, of course, do not always come in such direct and vociferous forms. In academe, for instance, we encounter them not just in shouting students, but in teachers and Deans’ offices posting notices about microaggressions. Certain talismans such as “diversity” go through all levels of the institution. Harvard University, a bellwether in these areas, has shown the two sides of this ideal and criterion, with separate ceremonies to celebrate the achievements of certain identities and, more darkly, denigrating the “personality traits,” i.e., character, of other racial and ethic groups when it comes to the all-important gatekeeping function of admissions. Thus, identity politics can range from the hot to the cool, from the overt to the back-room fix. In the name of a higher justice, it can violate ordinary justice.
The last claim is the nub. Deliberately ambiguous on my part, the sentence could be the protest of common moral sense against invidious discrimination, against violations of a fundamental principle of justice, treating equals equally and unequals unequally. On this reading, the Declaration’s individualistic notion of justice would comport with common sense, and would be an enlargement and a specification, precisely a political specification and enlargement, of its core intuitions. In this political community, it is individuals who have rights, not groups; the decisive group is the community of individuals that comes together in social compact to defend its members’ rights, as well as to exercise self-government for the sake of the “Safety and Happiness” of the community. Injustices and adjustments there will and must be, but they should be judged and addressed from within this framework.
On the other hand, the sentence could speak for identity politics, which believes that all identities, due to past injustices, are not currently equal, so rectificatory justice calls for the suspension of other forms of justice. When it has done its work, then the others can resume their place and work. This was Justice Sandra Day O’Connor’s view. It is Bill de Blasio’s today.
Abstract Individuals versus Concrete Identities
Certain contrasts thus come to sight. The Declaration’s notion of justice focused, fundamentally, on individuals and their rights, while race, sex, and gender were (largely) abstracted from. Identity politics finds this abstraction a hypocritical sham and a cover for injustice, starting with the black slaves denied their unalienable rights. Justice is human equality, identity politics agrees, but equality must be real, not merely legal or formal, and it must be across-the-board, for all identities. In the all-important area of race, the movement has been from affirmative action to quotas to proportional representation.
Identity politics is thus a continuation of a tradition of critique of the abstractness, the (mere) formality, and the hypocrisy of the classical liberal (“bourgeois”) notion of justice. Anatole France gave it a classic formulation: “Rich and poor are equally forbidden to sleep under bridges.” In this view, what are called “formal freedoms” are really masks of oppression and means of manipulation, both of minds (“false consciousness”) and bodies. Likewise, equality under the law, its equal protection for all, masks and perpetuates past and ongoing inequities.
What identity politics adds to this familiar litany is at least two-fold. It adds to the list of the oppressed, expanding from race and class and sex (women) to sex (homosexuals) and gender (transgendered), with the categories being constantly tweaked (LGBTQIA), precisely in response to the demands of identity. It also adds a new sovereign category and focus of justice: the group, rather than discrete individuals.
“Blacks” become as important in this optic as Martin Luther King, Jr. and Frederick Douglass, who are extolled primarily for their service to the group. The individual thus risks being defined primarily as a member and representative of a group. This is almost the reverse of King’s dream of a nation in which one’s children “will not be judged by the color of their skin but by the content of their character.”
As the two eminent (and quite different) examples suggest, however, this is an act of injustice to superior individuals, and, mutatis mutandis, to all the individuals of the group, who, after all, do have the right to be judged on the content of their character. In a connected vein, when the group is defined in a partial or ideological way, as it often is, certain members, precisely those with different views of identity or justice, are tacitly excluded or decried as traitors. One begins to suspect that group-identity is too slippery to employ as a, much less the, criterion of justice.
A hopeful reconciliation of the two would suggest that each view needs something the other has and both need to give up something of themselves in return. The abstract individual with rights ensures that irrelevant factors, precisely factors such as race and sex and gender, are not inappropriately brought in to bias judgments of dessert or merit. When they are, they can be indicted as such. But no human being is simply an individual; identity matters, and justice sometimes requires factoring in components of identity. On the other hand, the abstract individual reminds those who want to make group-identity dispositive for justice that it runs the risk of injustice, including against its own members.
For its part, the Declaration was already aware of the need to complement its abstract individualism with distinguishing content. In view of its revolutionary and political purposes, it identified various moral categories that perfect and help define the free individual and “a free people.” These included items from the canon of the cardinal virtues, prudence and fortitude, high-toned virtues, magnanimity and manliness, and, in another direction, deference to the Supreme Judge and trust in Divine Providence.
It would seem that the various identities could likewise adopt them as norms for themselves, precisely as enriching their own identities. In so doing, they would find themselves speaking and acting with the seriousness of the Declaration.