Some men think the earth is round, others think it flat. It is a matter capable of question. But if it is flat, will the King’s command make it round? And if it is round, will the King’s command flatten it? No, I will not sign.
–Thomas More “A Man for All Seasons”
When reading published opinions on the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case, I’m baffled why exalted legal minds, including some Justices and lawyers, make arguments that seem obviously wrong to me. Either I’m crazy or they’re crazy.
What troubles me is not their legal reasoning, but the underlying Procrustean (and perhaps materialistic) philosophical framework: it regards the person not as an autonomous and rational being, but as a physical object, on the same level as, albeit distinct from, the material products he provides. There is no effort whatsoever on the part of the lawyers and (self-appointed) judges to understand the perspective of the plaintiff, to put themselves in his position and follow his thought process. Their lack of understanding is astounding! No wonder they deny him the constitutional protection of freedom of expression, since, from their point of view, there is no expression.
A basic and universal legal principle is that a person has the right to defend himself, and be heard, before the Court can pass judgement on him. In this case, the principle is violated, because the plaintiff is not heard.
Expression in Context
One opinion (represented by Justice Kagan) separates the cake from the baker, and states that the same cake must be made for all, regardless of context. But, context is crucial in expression and speech.
The meaning of a word is determined in part by its context. The context may be the sentence in which the word occurs, or books written by the same author if he has a special usage of the word, or the broader usage in the historical and cultural environment — as defined in the dictionary. Similarly, we find the meaning of a physical object in its physical, personal, cultural and historical context. The exact same object may convey different meanings to different persons, even to the same person under different circumstances.
Justice Samuel Alito provided a striking example: The same cake with a date “November 9” written on it has completely different meanings when presented in a wedding anniversary vs. in a Nazi party celebrating Kristallnacht.
The baker has made wedding cakes for a quarter of a century, always celebrating traditional marriage. His varied expressions are understood in that context, though not necessarily in words. To make a wedding cake for same-sex wedding, which is contrary to his religious conviction, is to change the context and meaning of his expression entirely. As Justice Thomas noted, by ordering him to make the cake, the government is compelling speech, in direct violation of free-speech.
Freedom of Expression v. Objective Observer
Another opinion (represented by Justice Ginsburg) states that an objective observer is necessary to determine what constitutes expression. But, the “objective observer” test is not applicable to freedom of conscience case, neither in principle nor in practice.
In principle, freedom of conscience is supposed to protect the reason and autonomy of the individual on trial, not an “objective observer”. To give the latter the final say on the matter is to take power away from the individual, thereby subtly depriving him of his freedom and autonomy.
In practice, no observer is entirely objective, especially in matters of politics and religion. The fact that the Justices disagree widely on the meaning of the wedding cake, and the baker’s conduct, is a case in point. An opinion voiced in the name of an “objective observer” is likely personal bias in disguise. For instance, Justice Ginsburg asserts that the baker signifies nothing by making a wedding cake, therefore the State has not infringed upon his religious rights by requiring him to do so. If the action of making a cake signifies nothing, then not making a cake also signifies nothing, for the absence of nothing is still nothing. How then could the baker be charged with discrimination for not making the cake?
Procrustean Equality is Detrimental to Dignity
In Greek mythology, Procrustes offered hospitality to travellers with the intent to kill them. He had only one bed for all. To make them fit the bed, he hammered the short men and stretched them across the length of the bed, but sawed off the portions of the tall men that projected beyond it.
A law that requires the same products be provided to all customers is a Procrustean law. It may be a well-intentioned attempt to build community, but it is ultimately futile, if not pernicious. Instead of protecting the individual, it actually deprives him of his dignity, for it denies his unique personhood. As Martin Luther King Jr. said in his famous speech, “I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character”. The character of each individual is distinct, and each should be judged according to his own worth. A Procrustean law refuses to treat the individual according to his own worth, but forces him to fit an abstract, materialistic, model of equality that is not at all life-sustaining. Dignity, by definition, implies rank and distinction, therefore it is inherently contrary to Procrustean equality.
A vibrant community is not built on mere material goods and providers of goods, but built on relationships between autonomous beings. These relationships are based on civil and open interaction and dialogue, exchange of ideas and goodwill, mutual understanding, and mutual service. None of these can be realized without the willing consent of the people, and their determined and sustained effort to seek a common ground and achieve a common vision.
In short, dignity cannot be legislated, but it must be lived.
References:
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 US _ (2018). Oyez. Accessed October 22, 2018. https://www.oyez.org/cases/2017/16-111
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Your post this morning confuses me. The fact that the government lacks the authority to regulate certain conduct, does not dignify that conduct.
As for your point about freedom of conscience, beware. We need only remember the grand inquisition (or recent history in Iran) to notice that such freedom is terrible when the conscience it liberates is pathological.
HI Brad,
The basic point of my post is that the government can neither dignify nor undignify a person, and therefore it is futile for anyone to seek dignity from the government.
I would think the freedom of conscience is the opposite of the Grand Inquisition. The former respects the individual as a rational and autonomous being, whereas the latter does not.