The religious Right’s quiet decline is one of the more interesting political developments of the last decade.
Such is the state of American law and of American society that the decision of a single Colorado baker not to make a cake for a customer because of his religious objection to what the cake was for will now go before the Supreme Court. Argument in the “cake case,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, will take place next Tuesday, December 5th.
On Thursday I spoke at a panel at the Federalist Society’s National Convention entitled: Is Everyone for Federalism Now? The title is a backhanded tribute to the President. Finally, he is bringing us together, because he has caused the liberal resistance to Trump to appreciate federalism—a cornerstone of conservative thinking about constitution! But that is actually the shallower reason for the renewed interest in possible cross- ideological agreement on America’s most famous practical contribution to governance. The deeper reason is that a whole new school of law professors has embraced federalism under the new name of “national federalism.” Two of its most distinguished adherents, Heather Gerken and Abbe Gluck, were on this panel.
Count me a skeptic, however, about the prospect of any enduring alliance. To be sure, there may be tactical and opportunistic use of federalism by those who oppose the administration: that is the nature of politics particularly in Washington where for many politicians the meaning of the Constitution changes depending on whether they are in power. And there may be a few actual areas of rapprochement: it is conceivable, for instance, that some liberals may join conservatives in opposing commandeering of state officials.
But in general there will be no intellectual convergence because the right and left’s understanding of federalism—its content, origins and purposes—is very different. The right believes that federalism derives from a text of the Constitution that limits the power of the federal government, giving different responsibilities to federal and state officials. The purpose of this distribution of power is ultimately to protect individual liberty from government.
In contrast, progressives who promote federalism support a federalism that promotes activist government and exists largely at its sufferance—almost the opposite of constitutional federalism.
Until my own wedding five years ago, I had never recognized how many modern craftsmen and craftswomen considered themselves artistes. Our wedding photographer labored over angles, like a film director, to make the pictures a joint production of our day and her style. And even the wedding cake maker in our interview with her said she wanted to capture our “spirit” as a couple in her design. I reflected then that in a wealthy society even many people who make material things think they are ultimately are in the business of creating meaning, where they mix their expressiveness with their clients to make art in the workaday world.
Our expressive age provides the social context for the Masterpiece Cakeshop, in which a cake baker couple is challenging an antidiscrimination law that requires them to bake a cake for a same-sex wedding ceremony. Mark Movsesian has written an excellent post, in which he is doubtful about the success of such claims because they run afoul of the egalitarianism of American society–a feature first noted by Alexis de Toqueville. But America is also dedicated to free expression. And just as egalitarianism has increased over time to embrace the equality of same-sex and traditional marriage, so has the breadth of expressive activity. Thus, the First Amendment question in Masterpiece Cakeshop sets up a clash of two powerful currents coursing through America–equality and expression. And to make the clash even more striking, Justice Anthony Kennedy, often the swing vote on the Court, is both the creator of constitutional rights for same-sex couples and the most stalwart defender of free speech.
The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick, in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.
Under that document’s Supremacy Clause, all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.
In the 1970s, the proposed Equal Rights Amendment passed both houses of Congress with the requisite two thirds supermajority and then went to the states for ratification. The proposed Amendment then quickly secured numerous ratifications (ultimately securing 35 of the requisite 38 state ratifications) and looked sure to pass. But then the momentum for the Amendment stopped and it never secured the necessary ratifications. A big part of the arguments against the proposed Amendment were that it would lead to certain consequences, which were generally regarded at the time as extremely unattractive. While opponents of the Amendment argued it might or…
While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship of Justice Anthony Kennedy’s opinion. That is as it should be because the opinion is longer on sentiment and empathy than legal analysis. And yet it is now as much a part of the United States Reporter as the most well-reasoned judgment. Thus, it is worth looking at its doctrinal implications, none of which are happy.
First, Kennedy consciously removes the historical constraints on the Court’s ability to declare new fundamental rights. Washington v. Glucksberg (1997), the most important modern substantive due process case, required fundamental rights to be deeply rooted in the history and tradition of America. Whatever else can be said about it, same-sex marriage does not begin to meet that test. Kennedy says correctly that some other substantive due process cases did not meet that test either (Roe comes obviously to mind). While Kennedy does not quite say that he is overruling Glucksberg altogether, its relevance has been gravely weakened. Justices seem free to look to their views on the nature of justice rather than history to discern new fundamental rights.
While some libertarians in the past have been enthusiastic about this development, it is unlikely the Court will use this power to pursue economic liberties. I think this development is likelier to revive claims that some other social rights, like the right to assisted suicide, are also constitutional ones.
Kennedy also gestured to the equal protection clause in his decision.
In the vast majority of governing charters around the world, you will read the word “dignity”—but you won’t see it in the American Constitution. The traditional lodestars of American rights jurisprudence have been liberty and equality, as enshrined in the Bill of Rights and the Fourteenth Amendment’s equal protection and due process clauses. But of late, dignity has had something of a renaissance. Writing for the Court in United States v. Windsor (2013), Justice Anthony Kennedy concluded,
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.