The evening before the Masterpiece Cakeshop case was argued in the Supreme Court, the Washington Post published an article claiming that even if cake artist Jack Phillips has legitimate religious freedom and free speech claims, he should still lose because “the Constitution guarantees a right to equal dignity.” This is a lie. The Constitution contains no “right to equal dignity” or anything that can reasonably be construed as such.
The rest of the column was a dog’s breakfast of shoddy legal and social analysis, vitiated by the dishonest initial claim, which is risible to anyone familiar with the actual text of the Constitution. To be sure, leftists have long pushed such an idea, and Justice Anthony Kennedy, who likes to play at being a philosopher-king rather than a judge, has a tendency in invoke the concept of dignity when discovering a new constitutional right.
Nonetheless, there is no constitutionally guaranteed right to equal dignity. Not only is there no textual warrant for it, but the equal protection of such a right is impossible. Relying on government to ensure a right to equal dignity will result in state-imposed orthodoxy.
‘Dignity’ Is a Trumped-Up Harm
Despite, or perhaps because of, this, the Left has embraced the concept of dignitary harm as a justification for government action. For example, in his debate with Ryan Anderson and Sherif Girgis, John Corvino relied on it to justify otherwise intolerable restrictions on the First Amendment freedoms of religious exercise, free speech, and free association.
According to longstanding legal doctrine, government may only restrict such rights in the gravest and most pressing cases (“compelling government interest” is the usual legal phrase), and even then it must use the least restrictive means possible. Since a few non-conformist wedding vendors declining to promote or celebrate same-sex wedding ceremonies inflicts no significant material harm on anyone, the Left has turned to theories of dignitary harm and a constitutional right to equal dignity to justify government intervention.
But what do they mean by human dignity? They certainly do not mean something that is earned or developed (although we often speak of dignity this way), for if dignity is earned then an equal right to it is absurd. What is meant seems to be the idea that humans have intrinsic value and worth that ought to be respected. To treat someone unjustly is to deny his full humanity and inflict real, if non-quantifiable, harm on him, regardless of whether material harm is also committed. Thus, to condemn or criticize, rather than affirm, someone’s identity is an attack on his human dignity.
Whatever the merits of this as a theory of justice and human ontology, a right to human dignity thus understood can only be enforced by restricting freedom in authoritarian ways that violate human dignity.
If Bad Feelings Outweigh Rights, Rights Are Over
If, as the Washington Post article claims, the right to equal dignity can override actual enumerated constitutional rights, then those freedoms will be effectively abolished. What is Phillips’ offense against the ostensible right to equal dignity? It is that he declined to make a custom cake to celebrate a same-sex wedding.
The material harm he inflicted was negligible or nonexistent—the couple easily got their cake elsewhere. Thus, the Left needs the concept of dignitary harm or the “right to equal dignity” to justify punishing Phillips. But in Phillips’ case, this infliction of dignitary harm amounts to nothing more than his disapproval of same-sex marriage.
If that violation of the fictitious right to equal dignity is sufficient to override First Amendment rights, then they are a dead letter. The freedoms of speech and press allow far more egregious harm to equal dignity than Phillips’ polite refusal to craft a custom cake. If these freedoms are going to be restricted in the name of a “right to equal dignity,” I would suggest starting with the verbal abuse rife on Twitter.
This Is Really About Controlling What Ideas Are Acceptable
However, we know there is no intention of being evenhanded or pluralistic in enforcing this right to equal dignity. Rather, this right will require the government to establish and enforce a philosophical orthodoxy of belief on the populace. In Phillips’ case, they are using government coercion to try to force him to abandon his religious beliefs upon entering the marketplace. They are declaring that his deeply held and peacefully practiced religious beliefs are wrong and shameful.
The government has picked sides and decided that one identity (that of essentialized same-sex desire) is good and worthy of recognition, while another (that of Christianity and its traditional sexual teachings) is unacceptable and has no rights in public. Even if Phillips had crafted the rainbow cake under protest, his disapproval would have been considered a violation of the right to equal dignity.
Under the Left’s legal theories, he could still have been successfully sued for simply stating his opposition to same-sex marriage while making the cake. This is why Colorado’s judgment against him required not only that he create custom pieces for same-sex weddings, but that he also reeducate his staff, including his own family.
This authoritarian turn is inevitable if mere disapproval constitutes dignitary harm requiring government intervention. A government dedicated to protecting a right to equal dignity will have to choose among competing views of human dignity. For instance, although Catholic traditionalists have a well-developed conception of what human dignity entails, I am sure the Left does not want the demands of that view to be treated as constitutional imperatives.
When Leftists insists on a right to equal dignity, they mean only according to their particular views of what constitutes human dignity. Thus, not only will the government have to choose one version among many, in choosing it will declare that rival understandings of human dignity are themselves harmful to human dignity. The supposed right to equal dignity leads to suppressing the rights and dignity of dissenters from government orthodoxy.
This is precisely what we see here. The Left’s goal in the current culture wars is to make dissenters bend the knee. Thus, inventing a constitutional right to same-sex marriage is not enough; they demand that non-conformists promote and celebrate same-sex wedding ceremonies. One side’s dignity is elevated to the status of preeminent constitutional right. Those on the other side have their First Amendment rights stripped, along with their dignity. The attempt to establish a right to equal dignity becomes an all-consuming maw that devours constitutional rights, limited government, and ultimately dignity itself.
Whatever else it may mean, true human dignity entails freedom, includes the freedom to be wrong. Even if Phillips is wrong about life, love, art and sex, real human dignity demands that he be left in peace to craft his confectionary masterpieces as he sees fit.