Courts

Which Baby Will 'Justice Hamlet' Stab In Masterpiece Cake?

Anthony Kennedy holds two competing rights in his hands, which one will he choose?

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Justice Anthony M. Kennedy

Most of the time, courts are just like the other overtly “political” branches of government. We dress it up with inscrutable jargon, we pretend that we are deeply concerned with precedent, and we act like the Constitution speaks clearly about the issues of the day. But, in reality, there are “Republican” judges and “Democratic” judges, and if you ever doubted that, I refer you back towards Mitch McConnell stealing a Supreme Court seat while Chief Justice John Roberts did nothing to stop him.

But occasionally, courts do transcend their (actually crucially important) ideological squabbles and get to something more interesting and fundamental. Every now and then, courts have to choose between competing, valid, and valuable rights.

Masterpiece Cakeshop v. Colorado is such a moment.

In one corner, you have the right of every person to express his opinion without fear of retribution from the state. Just at the moment, free speech has been sullied — by some of its most prominent defenders — to the mere ability to go on Twitter to espouse white supremacy and ethnic separatism. They make free speech seem unimportant when they only invoke it to defend genocide propaganda. But real free speech and free expression is about being able to express what’s in your heart, without hurting anybody and without the state forcing you into thought submission at the point of a gun. It is a bedrock of a free society.

In the other corner, you have the right of every person to be treated with basic human decency and respect. I think, especially if you are a straight white male, you kind of take for granted that other people treat you as a “default human” almost all of the time. Of course there is no “right to be treated like a human” explicitly written in the Constitution; the people who wrote the Constitution considered themselves “full humans” and no one else. From a certain point of view, the entire American experience has been a rough slough to get all people to the default position white male landowners started with in 1776.

Rarely do these two rights conflict, but in Masterpiece Cakeshop they kind of do. The advancement of human decency demands that you can walk into a freaking store and order what you want, subject to your ability to pay and nothing more. Don’t get it twisted, at the heart of Masterpiece Cakeshop is a person going into an establishment and being told that they are essentially too subhuman to receive a good. Society can’t allow that.

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However, while I’m not bigoted towards gay people, I’ve got my own prejudices. Right now, today, if somebody walked into my office wearing a MAGA hat offering to spend millions of dollars advertising on this website, I’d tell him to f**k off. If the MAGA hat asked to take a selfie with me, I’d tell him to f**k off. If the MAGA hat asked for the key to the bathroom, I’d tell him to f**k off, and if necessary I’d take the key, throw it out the window, and scream, “NOW PISS YOURSELF LIKE YOU’VE DONE TO OUR COUNTRY.” I’m not playing. I’d likely GO TO JAIL before I willingly served anybody wearing a MAGA hat in my presence. So, while I don’t agree with the bigot at issue in this case, I get where he’s coming from. People, generally, shouldn’t be forced to support something they don’t agree with.

So we have to choose. Well, Anthony Kennedy has to choose. Anthony Kennedy has to decide which of these projects is more important to him, and as he goes so will the rest of the country for a time.

For him, it’s a hard decision, and today during oral arguments, you could see him openly wrestling with it.

Professor Rick Hasen called him “Justice Hamlet” after oral arguments, and the moniker is an apt reference for where we are. Hamlet, don’t forget, hesitated and equivocated BECAUSE he had a really difficult decision. KILLING YOUR UNCLE IS HARD (I imagine). Kennedy, in his mind, is being asked to murder one of the things he has spent his life promoting. He has been a judicial hero of the gay rights movement. He has been a judicial hero of free speech. He’s thought himself into a Sophie’s Choice — he’s got to turn his back on one of his children.

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I can’t claim to know what he’s going to do, but if he’s thinking about it along these lines, I imagine he’ll side with the rest of the conservatives and come up with some narrow ruling that allows Masterpiece Cakeshop to discriminate against gay people. I’ve set up the argument as between two “valuable” rights, but I imagine a lot of you read in that I was talking about two “equally valuable” rights. How very white of you.

I didn’t say that, of course, because I don’t believe for a second that free speech is an equally valuable right to basic human dignity. Free speech is a right the RESULTS FROM and is CONTINGENT UPON human dignity.

I can prove that: did slaves have a right to “free speech”? Would it have changed one freaking thing if the slaves had been given the right to free speech, without the right to not be owned by other humans? I know a lot of white people think that “free speech” was really important to helping white people speak out against slavery. However, from the perspective of the oppressed minority, your right to express yourself cannot be as important as my right to not be mistreated by you.

Of course, I’m black. Evidently, that gives me the SUPERPOWER of being able to understand the world beyond strictures of what makes white men happy. During the arguments, Kennedy was equivocal, and reports indicate that he was concerned that Colorado wasn’t doing enough to protect “religious freedom.” If you equate one’s religious freedom to another’s right to be treated with basic dignity, then you’ve already missed the game. Kennedy has never gone into a store and been denied service because of who he is. It might just be beyond him to understand what he’s really choosing between, because he’ll always be a default human in American society.

Unless I open up a cakeshop. It might be worth learning to bake just so I can play the Laertes to Kennedy’s Hamlet.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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