At the First Things site today, I have an essay on the Masterpiece Cakeshop case, in which the Supreme Court granted cert at the end of its term a couple of weeks ago. In the case, a cake shop owner argues that the First Amendment grants him the right to decline to design and bake a cake for a same-sex marriage. I use Masterpiece Cakeshop, and a hypothetical question I posed to my class in law and religion, to explore Tocqueville’s observation that the concept of equality inevitably expands in democratic societies, and to explain how a case in which same-sex marriage is so central may, in fact, have little to do with sexuality:
Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.
Tocqueville saw this coming long ago. Democracies, he wrote, prize equality above all other values. Their “passion for equality,” he observed, is “ardent, insatiable, incessant, invincible.” It is not simply a matter of assuring every person equal rights under law. Tocqueville believed, in Patrick Deneen’s words, that democracies inevitably seek to do away with “any apparent differences” among people—“material, social, or personal.” No distinctions are to be tolerated. In fact, Tocqueville wrote that democratic societies have an inevitable tendency toward pantheism, since, in the end, even a distinction between Creator and created becomes intolerable.
If I’m right that, in the long run, social intuitions drive the law, and if I’m also right that my students’ reaction reflects something about social intuitions in America today, then litigants like the shop owner in Masterpiece Cakeshop will have an increasingly hard time prevailing in American courts. As the concept of equality inevitably extends further and further, distinctions like the one he is trying to maintain will appear more and more rebarbative. People will fail to empathize at a basic level.
You can read the whole essay here.