Alexander Solzhenitsyn and the Masterpiece Cakeshop Case

In an article in the current issue of Touchstone magazine, L. Joseph Letendre discusses the famous commencement speech of Alexander Solzhenitsyn at Harvard University in 1978. One of the points that Solzhenitsyn makes in his speech regarding the decline of the West has application to the situation presented in the Masterpiece Cakeshop case.

Solzhenitsyn criticized the West’s reliance upon what he described as its “legalistic life.” He explained that “Every conflict is solved according to the letter of law, and this is considered to be the ultimate solution. If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right,  and urge self-restraint or a renunciation of these rights, call for self-sacrifice and selfless risk: this would simply sound absurd.”

Some of the commentators on the Masterpiece Cakeshop case paint a factual picture which, if true, present an example of what Solzhenitsyn was criticizing.  They point out that there were other Colorado bakers conveniently located who would have been willing to create a special cake for the same-sex couple’s upcoming wedding in Massachusetts.  See, e.g., Thomas C. Berg and Douglas Laycock, “Masterpiece Cakeshop and Protecting Both Sides,” Georgetown University Berkley Center for Religion, Peace and World Affairs, posted December 4, 2017.(“The harm to the couple here is also limited because numerous other bakers were easily available in Denver.”) Indeed, the couple did in fact obtain a specially-designed wedding cake from another bakery. (See picture of their cake in “The Case of Masterpiece Cakeshop,” https://appelletesquawk.wordpress.com, posted December 27, 2017.)

Without deciding whether the denial of the Christian baker to create a specialty cake to celebrate this same-sex wedding was an actionable episode of discrimination (and I do not believe it was), the point made by Solzhenitsyn is squarely on point. In his words, the “legalistic life” followed in the West concludes that “If one is right from a legal point of view, nothing more is required,” and no one is permitted to “urge self-restraint or a renunciation of these rights.” Thus, in the “legalistic” view, the legal recognition of same-sex marriage mandates that all must honor it no matter what, and that those who wish to enter into such a marriage are right to force their beliefs on the others who do not share their views. Self-restraint is not required, and indeed would be “absurd.”

As he is most likely to have the decisive vote in Masterpiece Cakeshop, we give Justice Kennedy the last word. He observed at the oral argument that: “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual… And –because accommodation is, quite possible, we assume that there were…other good bakery shops that were available.” (Transcript of December 5, 2017 Oral Argument, No. 16-111, at 62.)

Reference:

L. Joseph Letendre, “Schism in Harvard Yard: Solzhenitsyn’s Blunt Sermon Still Cuts Deep 40 Years Later,” Touchstone May/June 2018, at 30-35.

 

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