Those of you not dazzled by Anthony Kennedy’s meanderings may not have read his majority opinion in the recent Masterpiece Cakeshop Supreme Court decision. But being promiscuously dazzled, I did. The decision itself was a masterpiece courtshop of legal cowardice. Though that being on the far positive side of the Kennedy continuum I won’t spend much time critiquing it. Anytime you can exit one of his majority opinions without traditional society suffering a rude anal incursion, one counts himself fortunate.
Far more insidious to me was the full blossoming of a long legal trend that replaces permissibility of act with purity of thought. In the process of which, it demands our black robes know less the laws of the land than the hearts men. And that is the province not of lawyers and jurists, but shamans and sorcerers. Good thing we suffer no deficit of the latter.
What I’m talking about specifically is how much of his typical blabber Kennedy devoted to divining the thoughts, motivations, and malices of the contending parties. You might think this case was simply Part XXCIV of the intractable conflict between free human agency on one hand, and the court’s demand that it never be exercised against the interests of “minorities” on the other. These are fundamentally irreconcilable positions. As a result they are only ever addressed through a perpetual series of self-satisfied, needle-threading exercises, which could each be summarized as “Here, but not there. Or maybe there but not here.”
And in this Kennedy did not deviate. What was more striking than normal, though, was the real estate he devoted to pronouncing upon each party’s mindset. Pleasant and generous thoughts he thus found produce constitutional behavior, while callous or churlish impulses were impermissible. And so if the verdict hinges on the mind, why even ask what the body did? I can’t overstate how much Ahmed and Jose’s children will come to regret this devolving legal doctrine.
In the Masterpiece case the issue was whether a man is free to bake the confections of his choice, or instead finds his oven bound by the whimsy of what blows in the door. That’s the only relevant question. But it’s not at all the question Kennedy sought to answer. Instead the matter was settled entirely by whether the baker was devout and honest, compared to whether the Colorado “civil rights” star chamber was neutral and tolerant: purest thoughts win!
You will obviously have to peer very deeply into the constitution’s fine print before it will relinquish the secrets of how bad thoughts overrule good acts, or vice versa. Though I can imagine that a man like the Night Stalker might find himself incensed at the court’s lack of interest in his own particular incentive profile—if he weren’t already dead, that is. Maybe Ramírez killed one person because he feared their continued respiration would contribute to climate change. Would that be good thought: innocent? While the next flouncing victim he dispatched because Satan hates homos, which would equal bad thought: guilty. Under this template I would presume killing someone simply because it was Wednesday would result in a hung jury. It’s a pretty bland motivation, after all.
Fortunately for the Christian baker, Supreme Court justices are gifted with perfect clarity into the murk of the human mind, and thus are quickly able to discern whether a plaintiff’s somewhat pensive mood is acceptable under the guidance of various articles and amendments. This is not an easy task. You may not even know precisely what complex matrix of fears, needs, passions, pressures, preferences, and prejudices drive your own decisions and behaviors. But the constitution does. And that’s what our courts are here to explain.