Perspective by incongruity: Law and rhetoric in Masterpiece Cakeshop v. Colorado Civil Rights Commission

ABSTRACT

The Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was decided on the narrow ground that the Colorado Civil Rights Commission violated the First Amendment’s Free Exercise Clause because of hostility toward the owner of Masterpiece Cakeshop. This decision failed to answer a cardinal question of constitutional law, whether or not the First Amendment’s Free Speech Clause could undermine nondiscrimination law. In Justice Anthony Kennedy’s majority opinion, he seized on one particular comment made by a Commissioner about religious freedom that justified ruling against the Commission for its use of discriminatory rhetoric. According to Justice Kennedy, the Commission violated the Free Exercise Clause by describing religious expression as despicable and as merely rhetorical. In this report, I argue that Justice Kennedy’s opinion demands heightened attention for two reasons. First, to describe religious freedom as a justification for prejudice as merely rhetorical is a gross underestimation of the power of rhetoric and provides moral encouragement to anti-LGBTQ+ activists using the legal system to advance a heteronormative agenda. Second, Justice Kennedy’s claim that rhetoric is insubstantial and insincere calls into question the role of the Court, the meaning of the law, and the relationship between the law and rhetoric.

KEYWORDS:

• Free Speech Clause
• Free Exercise Clause
• Masterpiece Cakeshop v. Colorado Civil Rights Commission
• LGBTQ+ activism
• rhetoric

Notes

1. Streett, “Supreme Court Review,” 313.

2. Colorado Civil Rights Commission, 584 U.S. 16-111 at 1731.

3. Colorado Civil Rights Commission, 584 U.S. 16-111 at 13-14.

4. Colorado Civil Rights Commission, 584 U.S. 16-111 at 1719-1729.

5. See note 1 above.

6. Colorado Civil Rights Commission, 584 U.S. 16-111 at 14.

7. White, “Rhetoric and Law,” 298.

8. Klinger, “Law as Communicative Praxis,” 239.

9. Hasian and Croasmun, “The Legitimizing Function,” 123.

10. Makau and Lawrence, “Administrative Judicial Rhetoric,” 191.

11. Klinger, “Law as Communicative Praxis,” 236.

12. Gibson, Ruth Bader Ginsburg’s Legacy, 3.

13. Burke, Attitudes Toward History, 308.

14. Gaonkar, “Rhetoric and its Double,” 342.

15. Burke, Attitudes Toward History, 309.

16. Ibid, 311.

17. Burke, Permanence and Change, 160.

18. Strasser, “Masterpiece of Misdirection,” 991.

19. Koppelman, “The Press is Wrong.”

20. Epps, “Justice Kennedy’s Masterpiece Ruling.”

21. Schwartz, “U.S. Supreme Court Sides.”

22. Tiven, “Masterpiece Cakeshop Ruling.”

23. Strasser, “Masterpiece of Misdirection,” 1007.

24. Stern, “Gay Americans Have Little.”

25. Ibid.

26. Strasser, “Masterpiece of Misdirection,” 1008.

27. See note 24 above.

28. Marback, “A Meditation on Vulnerability,” 1.

29. Ibid., 2.

30. Gaonkar, “Rhetoric and its Double,” 344.

31. Strasser, “Masterpiece of Misdirection,” 1009.

32. Signorile, “We Can Already See.”

33. Mar, “A Jury May Have.”

34. Strasser, “Masterpiece of Misdirection,” 1005.

35. Streett, “Supreme Court Review,” 314.

36. See note 33 above.

37. Hart, “When the First Amendment Compels,” 427.

38. West, “Wedding Cakes,” 2–3.

39. See note 13 above.