How is Equality Baked into Our Constitution?

The United States Supreme Court on Tuesday heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The case, and the specific legal questions surrounding Jack Phillips’s work, have been discussed at length elsewhere, and in any event can be expected to come to a practical conclusion in a few months.

But the controversy’s underlying moral, political, and philosophical questions no doubt will remain. What is at stake as we consider the shape of the debate moving forward?

The case embodies the clash between two fundamentally different conceptions of human equality and two corresponding notions of what we owe to one another as equals. To fully grasp the competing visions of equality, we must understand their implications and the moral obligations they suggest. Understanding this deep debate over equality allows us not only to grasp the free speech and free exercise aspects of the case but also reveals the looming threat to liberty and limited government before us.

Let’s begin with a question: How did Phillips harm Charlie Craig and David Mullins, the gay couple who filed the original complaint? What did Phillips do to them?

In one sense—in a literal sense—he did nothing to them or for them. Phillips denied their request to engage in a commercial transaction. That denial as such was not the harm—we could think of reasons why Phillips could refuse to design the wedding cake that would not have been perceived to be harmful. For example, if Phillips was going on vacation and couldn’t complete the cake on the date requested, or had too much business and wasn’t taking new orders or if he lacked the artistic skill to design the specific cake Craig and Mullins requested.

The harm wasn’t that he refused to design a cake; it was the reason he gave for his refusal—he refused to design the cake because it was for a same-sex marriage.

Articulating that reason—saying that he found same-sex marriage morally problematic—and then acting according to those beliefs was how Phillips “harmed” Craig and David.

Phillips’s violation, in this age, is regarded as a type of blasphemy. Respecting sexual orientation, he violated the state-enforced morally approved views of the state of Colorado. Like heretics of old, Phillips is being persecuted by authorities who seek to enforce their dogmas.

Blasphemy was persecuted because it was thought to offend God.

But we still have to ask: what is the harm in expressing a belief or a moral opinion followed by no action?

The answer reflects the new understanding of equality that progressive liberals have adopted.

Phillips in effect assaulted the dignity of Craig and Mullens. He assaulted their dignity by refusing to recognize the legitimacy of their marriage and the moral propriety of their sexuality. In our new religion, the self—the identity that we put forth to the world—is the new deity. Denying the “self” of others is heretical.

It is a violation of equality because equality in this view means having one’s identity affirmed by others. To be equal means to be recognized in one’s identity, whatever that identity may be. The act of recognition itself is necessary to the realization of equality. If one’s identity is not respected or recognized or affirmed—if one is “disrespected,” to use an awkward term—one is denied equality.

The older understanding of equality was different. The older understanding, the founders’ understanding that animated our original Constitution, held that we are equal in our natural liberty—we each equally possess dominion over our own lives and therefore over our own labor and faculties. And thus we can choose to labor or choose to contract with one another when we, the possessor of these things, see fit to engage them. We cannot be compelled to use them. Equality in this older understanding was realized, as Lincoln said in Peoria in 1854, by letting “each man do precisely as he pleases with all which is exclusively his own.”

The older understanding of equality included a presumption of liberty—an individual was free to employ his labor or not according at his own discretion—this was an essential aspect of what it meant to be free—the ability to own and control one’s own labor.

We’ve recognized certain exceptions to this freedom. In situations of monopoly or governmental licensing or privilege—then if one was generally open for business, one had to take all-comers. And, of course, there had to be an exception for race because of our original sin of slavery and continued denial of justice through legally enforced segregation—sins that involved denying black Americans the equal freedom to control their labor and enter freely into contracts with others. These were the exceptions to the presumption of liberty, a liberty that followed from our natural equality.

The older understanding of equality held that if you didn’t do anything to another person—if you just left him alone—then you did not harm him. Again, Americans have made certain exceptions, notably for race. But these were exceptions. True, expressing one’s opinions alone might offend someone. In the older understanding, however, as long as you did not interfere with another’s right to express his opinions or in some way interfere with his God-given natural and equal liberty, speech alone couldn’t harm another.

The new progressive understanding is different. Speech and the expression of opinions that fail to recognize the self-chosen identity of another inflict what is now called “dignitary harms.” Speech that offends protected classes can be shut down—this is what we are seeing on college campuses all over the nation—and businesses like Masterpiece Cakeshop that refuse to engage in commerce for reasons associated with certain protected identities can be fined or sanctioned.

This new view of equality—that equality requires affirmation by others—is incompatible with our true understanding of freedom.  

If my equality requires your affirmation—in other words, that you recognize and accept and approve of me as I want to be affirmed and recognized and approved—then my demand for equality must necessarily direct and control and limit what you can say. It will also direct and control what religious beliefs you are allowed to embrace; at least if you mean to embrace them in any meaningful way.

This is what is at stake in the current case.

Jack Phillips may win his case. But whether freedom of speech and the free exercise of religion will be protected in the future depends on whether we as a nation recapture and rededicate ourselves to our Founding Fathers’ understanding of freedom and equality That fight is just beginning, and it will not be resolved when this case is over.

Editor’s note: This essay is a revised and updated version of a talk delivered at the Claremont Institute’s 2017 Constitution Day Celebration at Chapman University on September 23, 2017.  

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About Vincent Phillip Muñoz

Vincent Phillip Muñoz is the Tocqueville Associate Professor of Political Science and Concurrent Associate Professor of Law at the University of Notre Dame. The founding director of Notre Dame’s Center for Citizenship & Constitutional Government, Muñoz is completing a book titled Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses.