Disagreement, Discrimination, and Polarization: An Open Letter to Justice Ruth Bader Ginsburg

Justice Ginsburg’s claim in Masterpiece Cakeshop is deeply troublesome and problematic. Mistakenly asserted, it adds to the aggravated polarization within the United States.

Dear Justice Ginsburg,

I’m writing you this open letter about your dissenting opinion in the Masterpiece Cakeshop case—not about the opinion in general, or the conclusion you reach, but about one deeply troublesome, factual claim that you assert.

It’s not a necessary claim: you could have reached the same result without making it. It’s also not a conspicuous claim: you present it unobtrusively, in a footnote. The claim repeats such a familiar assertion that most readers might take your assertion as being axiomatically true (“as everybody knows”) and so hardly worth examining.

But in fact, the claim is both crucially important and demonstrably mistaken. It is mistaken not as in “reasonable minds may differ,” but as in “the earth is a flat disk”—something clearly false that many people have sincerely believed. I think that the claim, or the view that it expresses, presents a major obstacle both to mutual understanding and to the achievement of a political and legal resolution of these vexing issues.

That’s why I’m writing this letter—and why I’m writing it as an open letter. For the sake of legal clarity and civic unity, it’s important that the mistake be clearly brought into view.

The Claim—and the (Counterfactual) Corollary

The crucial claim occurs when you’re arguing that the Masterpiece Cakeshop case was notably different from cases in which other bakers refused to make cakes with messages opposing same-sex marriage. You assert (correctly, I think) that those bakers declined because they were offended by the message they were asked to convey. Conversely, you say, Jack Phillips “declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it.” (My emphasis). You then clarify your point with a counterfactual: “Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake.”

I assume you’re using the law professor’s and appellate judge’s standard device of giving a hypothetical variation in order to clarify a point. We can imagine a case in which a person who is heterosexual (or bisexual) chooses to marry someone of the same sex as himself or herself—for tax reasons, Social Security benefits, immigration purposes, or for some other reason. A straight man could marry another man. A heterosexual woman could marry another woman. There is nothing conceptually—or legally, or biologically—impossible about your counterfactual hypothetical.

So I appreciate your hypothetical, with its implicit counterfactual question. Asking what Jack Phillips would do if two heterosexual men or two heterosexual women requested a wedding cake is a good way to examine and clarify what Phillips’s real reasons for refusal were. However, with all due respect, your answer to that question is unsupported by any evidence and verifiably false.

We don’t need to speculate, for Phillips himself has explained, “I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer.” Nothing in the record contradicts his statement.

Your Honor, if Phillips was telling the truth, then your counterfactual claim is simply wrong. If Craig, Mullins, or both had been heterosexual rather than homosexual, Phillips still would not have made the cake. Thus, a more accurate counterfactual claim would say, “Change Craig and Mullins’ sexual orientation … and Phillips still would not have provided the cake.”

I have to admit that your contrary assertion surprises me. Judges normally don’t confidently and unqualifiedly assert something that is directly contrary to the uncontradicted evidence without some sort of explanation. So what’s going on here? Maybe you thought that Phillips was lying? But you didn’t actually question Phillips’s honesty. Nor is there any reason to doubt that he was accurately reporting his own position. Could you have thought that Phillips was deceiving himself? He thinks that his refusal to design and create a cake for a same-sex wedding is based on his opposition to same-sex marriage, not on any scruples about serving LGBT customers. But you somehow know that, deep down, it’s the other way around?

Judges normally don’t confidently and unqualifiedly assert something that is directly contrary to the uncontradicted evidence without some sort of explanation.

And yet you don’t actually say this either. Nor would any such claim, openly asserted, be even remotely plausible. How could you know what a conservative Christian in Colorado really believes better than he himself does? And if Phillips’s real objection is not to same-sex marriage (as he claims it is) but rather to preparing products requested by homosexual customers (as he denies), then why is he perfectly willing to sell them anything else on his inventory?

In short, the position you ascribe to Phillips is contradicted by both his own explanation and his practice. And, frankly, the position just doesn’t make much sense.

So, I admit it: I’m puzzled. My best guess is that your counterfactual claim is so often recited that you repeated the claim without noticing how implausible and inconsistent it is with the actual evidence in the case.

This is troubling. I can understand how mere advocates would make the kind of assertion you make, neglecting the actual evidence. But can’t we expect a bit more from judges, and especially from justices? No one doubts that judges have their own perspectives and commitments. Even so, judges are supposed to examine the evidence impartially and avoid making assertions unsupported by—or, worse, flatly contradicted by—the evidence. In this respect, we hope that our judges are committed to the truth and rise above the epistemically irresponsible practices of popular advocates and certain government officials.

Which is why it is distressing when Supreme Court justices, in arguing for their conclusions, make the same kinds of denigrating and factually unfounded claims about fellow American citizens that we read about in the news just about every day.

Aggravating Polarization

Now let me explain why I think your mistake is so damaging.

Everyone knows that our society is in the midst of an increasingly intense cultural polarization that threatens to tear the country apart. With marriage and religion at the center, each side has its extreme voices and advocates—people who depict those on the other side as hateful, bigoted, and belligerent. Those who offer these depictions, or who accept them, will naturally favor a scorched earth policy: the other side is trying to crush us, so our only sensible response is to crush them, if we can.

Sadly, these denigrating depictions are not simply false. Even so, I am sure—and I hope you will agree—that there are also people of good will on each side. These people believe in their causes, but they are also searching for ways for Americans of different values, beliefs, and commitments to live together in peace. If there is any hope of reconciliation, it is these people of good will who will achieve it. I suspect that you would agree with me on this point. And I also suspect (and this is not just flattery—too late for that!) that you yourself are among this group of people of good will who want to be respectful and who are searching for common ground.

Which is why your statement in Masterpiece Cakeshop is so unfortunate, and distressing.

Can you see how that kind of mischaracterization aggravates the misunderstandings and suspicions that divide us? To start with, it gives aid and comfort to the extremists on the “progressive” side. Your statement reinforces the idea that these actors do not have to listen to the beliefs of the people they oppose—the Jack Phillipses of the world. If a United States Supreme Court Justice can peremptorily disregard Phillips’s own explanation of his position and instead confidently impose a more demeaning characterization, why should anyone else hesitate to do the same thing?

And then try to put yourself in the position of Jack Phillips. Suppose you read the quoted statements. You are probably thoroughly accustomed to hearing such accusations, but this time they are coming from a justice of the Supreme Court. What will you think?

Well, you will know with a sure conviction that the justice has grossly misrepresented you and your commitments. And she has done this even after you have explained—on the record—what your actual beliefs are. So, either the Justice is simply incapable of understanding what you believe, or else she just doesn’t care: she will say whatever is necessary to justify a legal decree that is devastating to you and your business. And so, even if you were predisposed to a more charitable interpretation of your cultural opponents, you may feel forced to the more extreme conclusion. “It really does look as if they will do and say whatever they need to in order to crush us.”

In short, Your Honor, statements like yours—because they are yours—push people, on both sides, out of the group of people of good will and into the camps of “scorched earth” extremists.

Fighting for a Middle Ground

But the consequences go beyond creating extremists. Such statements work to dissolve promising possibilities for an acceptable middle ground.

Today, some actors, organizations. and conferences, seek to find middle ground positions—positions that might not be entirely to the liking of either side in these cultural conflicts, but that might permit diverse Americans to live together in relative peace.

There are no easy solutions. But one promising possibility would build upon a distinction between two different classes of discriminators (if you want to call them that). One class includes people who discriminate against others simply because of who they are—their identity. The other class encompasses people whose scruples are more limited and less identity-based.

The first class would include merchants who say, “I won’t serve blacks—because they are black,” or “I won’t work with gays or lesbians—because they are homosexual.” (And I have to concede, though I cringe in doing so, that merchants in this class might sometimes cite religious beliefs in support of their refusals.) The second class would include merchants who say, “I have no objection to serving and working with gays and lesbians; on the contrary, my Christian beliefs require me to serve them. But I do believe that same-sex marriage is contrary to God’s will, and I don’t want to be involved in celebrating that.”

Admittedly, distinguishing between these classes of merchants will not always be easy. People on both sides of the cultural divide will resist. A religious freedom extremist might want to protect both groups of religious-motivated discriminators (as we’re calling them); the nondiscrimination proponent might want to protect neither.

Yet, as cases like Masterpiece Cakeshop demonstrate, the distinction is a real one. Jack Phillips is definitely in class two, not class one.

Why might this distinction lead to an attractive middle ground position? A doctrine protecting both groups would be very broad in scope, and hence more subversive of nondiscrimination policies. It would protect actions that most of us—on either side of the cultural divide—find reprehensible. By contrast, a legal resolution protecting the second group but not the first would be much narrower in scope. And surely even those who condemn both groups would find the second group less reprehensible.

So the distinction seems potentially promising. Indeed, though hardly anyone seems to notice, something like this distinction is already built into our nondiscrimination laws. Typically, those laws prohibit a business from refusing service “because of” (or, sometimes, “on the basis of”) a list of prohibited criteria—race, sex, and sexual orientation. Merchants in the first class plainly violate those laws: they refuse service because of (in the standard “but for” sense) a claimant’s race or sexual orientation. But merchants in the second group do not, strictly speaking, deny service “because of” sexual orientation.

In my experience, people find this point surprisingly difficult to grasp. The beauty of your counterfactual hypothetical, though, is that it serves nicely to illustrate and confirm the point. Your statement is the professor’s usual way of helping students grasp and apply the notion of “actual cause,” or of “but for” causation. And in this instance, the correct answer—the one supported by the uncontradicted evidence—is that Jack Phillips would still not make the wedding cake because he is opposed to same-sex marriage—not “because of” the customer’s sexual orientation.

We might solidify the point by imagining (still in law professor mode) the reverse of your hypothetical. Imagine that a man and a woman, one or both of whom self-identify as homosexual, decide to marry and ask Phillips to make their wedding cake. Will he have any objection? No. Because, once again, he does not care about the sexual orientation of his customers, and he has no objection to a marriage between a man and a woman.

So if we truly want a middle-ground position, one already exists that requires no legal change of any kind. All that is needed is a more careful and faithful implementation of the “because of” terms of existing nondiscrimination laws. None of the free-form “balancing” of religious freedom versus equality would even be called for.

Now, you may not like this particular middle-ground position. Yet a distinction between truly invidious, identity-based discrimination (whether or not supported by religious reasons) and limited message-based refusals offers a promising avenue towards mutually acceptable accommodation.

However, an unfortunate feature of your claim is that it wipes away this possibility of mutual accommodation. You insist that the message-based objection is equivalent to identity-based refusal. If the facts compelled this conclusion, that elimination might be regrettable but necessary. But when the claim is contradicted by the unchallenged evidence, this elimination seems almost tragic in its consequences.

It’s Not Too Late to Rethink

As you know, the Masterpiece Cakeshop decision left most of the substantive issues and conflicts unresolved. And these cases seem to be proliferating. As you may have read, the Colorado Civil Rights Commission seems determined: the Commission has brought a new case against Jack Phillips himself. So the need to find a mutually acceptable resolution is imperative.

Which is why I sincerely hope you will reconsider—and perhaps even retract—the unfortunate claim contained in your Masterpiece Cakeshop opinion.

I sincerely hope you will reconsider—and perhaps even retract—the unfortunate claim contained in your Masterpiece Cakeshop opinion.

Good precedent exists for doing this. As you’ll recall, Justice Kennedy’s majority opinion in United States v. Windsor (which you joined) declared that the federal Defense of Marriage Act was unconstitutional because it was based on “animus” and “a bare desire to harm a politically unpopular group.” Kennedy thus impugned the motives and character of the members of Congress who had supported DOMA, and of the millions of Americans who had supported the legislation. His ascription of animus or bare hostility was standard advocacy rhetoric, of course, but it was also a profoundly uncharitable and implausible accusation.

To his credit, though, Justice Kennedy seems to have come to appreciate the implausibility and offensiveness of his rationale in Windsor. So in the Obergefell v. Hodges majority opinion (which you also joined), Kennedy went out of his way to express respect for those views the decision was rejecting. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

Is it too much to hope, Justice Ginsburg, that you might offer a similar amendment? I doubt that this would alter your votes in future cases. But it might do something to promote mutual understanding and the achievement of a fair middle-ground resolution.

In these distressing and perilous times, shouldn’t we all be trying to do as much?

Respectfully,
Steven D. Smith

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