The Power of Toleration and the Promise of Testimony in Masterpiece Cakeshop

• In Event: The Contours and Forums of Free Speech

Abstract

This paper critiques the reliance of the Supreme Court on the language of toleration in Masterpiece Cakeshop v. Colorado Civil Rights Commission. I argue that, as Justice Anthony Kennedy determined that state and federal governments should cultivate an attitude that is at once “neutral toward and tolerant of” religious beliefs that discriminate against same-sex couples or queer individuals, he participated within a complex, and deeply fraught, discursive tradition that suggests toleration can not only guarantee religious freedom, but also unimpeded individual liberty. Although policies that advocate toleration endeavor to achieve substantial political and legal goals for minority communities – that is to say, they promise to secure the rights of Evangelical Baptists alongside gay, lesbian, and transgender persons – they fail to account for the Protestant Christian origins of the ideal. These origins, I suggest, hinder the efforts of the Court to craft a decision that is neutral amongst competing conceptions of “the good.” By combining theoretical texts from John Locke, Wendy Brown, and Lars Tønder with qualitative archival research and interviews, I determine that the adjudicatory power of toleration in regulating religious beliefs and sexual identities, first, flattens the robust protections for religious freedom found in the Constitution and, second, asks queer communities to voluntarily abrogate their rights to equal treatment. I conclude by articulating a more expansive vision of religious freedom and sexual liberty – one that entails rehabilitating the role of toleration to include (and substantively value) first-person testimony in law- and policy-making processes.

Author

• Kathryn A. Heard, Dickinson College