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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.
Dignity - Warrant - Protection - Right - Government
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.
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.
Doctrine - Government - Rights - Cases - Government
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...
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