Podcast Summary: Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Religious Belief, Sincerely Held
Date: June 9, 2018
Host: Dahlia Lithwick
Guests: Mark Joseph Stern (Slate Legal Correspondent), Reverend Dr. William J. Barber II

Overview

This episode of Amicus delves into the key Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, analyzing its nuances, media coverage, and implications for LGBTQ and religious rights. The second segment features a powerful conversation with Reverend Dr. William J. Barber II about the intersection of faith, morality, social justice, and constitutional values in America, especially in the context of the Poor People’s Campaign.

Segment 1: Dissecting the Masterpiece Cakeshop Decision

With Mark Joseph Stern
Timestamps: 00:03–32:18

Main Theme

The Supreme Court’s long-awaited Masterpiece Cakeshop decision is scrutinized for its legal meaning, media misinterpretations, and societal impact. Rather than a sweeping ruling, the decision is revealed as a narrow compromise that leaves central questions unresolved.

Key Discussion Points & Insights

1. Background of the Case (02:17–04:50)

• Summary:
  A Colorado baker, Jack Phillips, refused to make a wedding cake for a same-sex couple, leading to a confrontation with state non-discrimination laws. The Supreme Court’s decision was highly anticipated as a potential clash between religious liberty, free speech, and LGBTQ civil rights.

2. Media Misreporting and Public Perception (04:50–10:09)

• Headline Confusion:
  Many outlets incorrectly framed the decision as a sweeping victory for the baker, misunderstanding the legal nuance.
• Speaker Quotes:
  • “Pretty much all of the instant reporting…was terrible because it made it seem as though the baker had won a sweeping victory when he won no such thing.”
    — Mark Joseph Stern (06:42)
  • “It was a disaster. I spent a lot of Monday with my head in my hands, just like rage, tweeting Ted Cruz for no good reason…”
    — Mark Joseph Stern (09:42)

3. Nature and Scope of the Ruling (10:09–17:11)

• Narrow Holding:
  The 7-2 ruling focused only on a lack of religious neutrality by Colorado commissioners—not on the broader constitutional issues of free speech or religious exemptions.
• “Constitutionalizing Civility”:
  The decision regulates how officials discuss religion, not the merits.
• Notable Quote:
  • “The court made it clear that you probably can require bakeries and other stores to serve same-sex couples. As long as you…are really nice about it.”
    — Mark Joseph Stern (13:35)

4. Reactions and Lingering Concerns (17:11–21:57)

• Discontent on All Sides:
  Both conservative and progressive groups aimed to fit the outcome into pre-written narratives of loss or victory.
• Kennedy’s Dual Legacy:
  Kennedy was seen to be protecting both LGBTQ rights and religious dissenters without fully committing to either.
• Quote:
  • “Even though it’s a compromise, even though it’s basically a punt, it still feels like there’s something kind of rotten here. And that gives gay people and LGBTQ people reason for pause.”
    — Mark Joseph Stern (19:19)

5. Strategic Justice Alliances (22:43–25:09)

• Kagan & Breyer’s Tactical Voting:
  Their majority votes aimed to limit the ruling’s impact and reinforce dignity for LGBTQ people.
• “A Smart Tactical Move”:
  • “If they could lend their votes to Kennedy’s opinion, perhaps they could limit the opinion in some ways.”
    — Mark Joseph Stern (23:21)

6. Broader Legal Implications (25:09–27:12)

• Connection to the Travel Ban Case:
  Hopes that animus doctrine would apply to President Trump’s travel ban were mostly “wishful thinking.”

7. Other Supreme Court News & Upcoming Decisions (27:12–32:09)

• Undocumented Minors and Abortion Rights:
  The Court avoided punishing ACLU lawyers for helping a minor obtain an abortion, deeming the matter moot and declining to get entangled in related disputes.
• Big Decisions Ahead:
  Unions, gerrymandering, and free speech expected to dominate the remainder of the term.
• Quote:
  • “It’s going to be a long month.”
    — Dahlia Lithwick (31:05)

Notable Quotes (Segment 1)

• “When the Supreme Court makes law, law can be really complicated and knotty and thorny. And that is what Masterpiece Cakeshop was.”
  — Mark Joseph Stern (06:12)
• “Constitutionalizing civility…doesn’t resolve on the merits any issues. What it’s regulating is how we talk about the issues.”
  — Dahlia Lithwick (14:05)
• “This was just completely tactical and strategic.”
  — Dahlia Lithwick on Kagan and Breyer joining the majority (22:51)

Segment 2: Faith, Morality, and the Constitution

With Reverend Dr. William J. Barber II
Timestamps: 34:24–64:11

Main Theme

Rev. Dr. William J. Barber II discusses the deep interconnections between faith, morality, justice, and constitutional principles, focusing on how religious and constitutional language have been co-opted and how social justice movements can reclaim them.

Key Discussion Points & Insights

1. Faith and Constitutional Morality (35:35–38:41)

• Moral Narrative:
  The U.S. Constitution and religious traditions both call for justice, the common good, and care for the marginalized.
• Quote:
  • “When you look at policies through that moral lens…you are seeing actually a violation of the first fundamental moral principles of our Constitution.”
    — Rev. Dr. William J. Barber II (36:43)

2. Losing—and Reclaiming—the Moral and Constitutional Discourse (38:41–44:07)

• History of Reconstructive Movements:
  Recap of historical periods when progressive fusion politics transformed the nation.
• Quote:
  • “We should never allow this kind of religious nationalism that suggests that if you’re anti-gay, anti-abortion, pro-prayer in the school…then somehow you are advocating a moral and religious position. It has to be challenged…”
    — Rev. Dr. William J. Barber II (39:54 & 16:00)

3. Fusion Politics Overcoming Siloed Activism (44:07–49:20)

• Intersectionality:
  True change requires collaboration across issues—voter suppression, poverty, racism, and environmental injustice are interlinked.
• Historical Perspective:
  Fusion coalitions have historically led to the most significant advancements in justice.

4. Religious Freedom, Public Accommodation, and Civil Rights (49:20–54:53)

• Faith as Inclusion:
  True Christian (and general religious) values center on love, inclusion, and justice—not exclusion.
• Public vs. Private Beliefs:
  Personal religious beliefs do not entitle someone to deny public services or civil rights.
• Quote:
  • “You can have your individual position… but you can’t deny us equal protection under the law.”
    — Rev. Dr. William J. Barber II (52:06)
  • “That was the same argument of the segregationist… We said, in this country, you can be a racist if you want to personally, but you cannot use public positions to implement your racism.”
    — Rev. Dr. William J. Barber II (53:41)

5. Resilience and Hope in Social Movements (54:53–64:11)

• Response to Fatigue:
  Rev. Barber shares stories of activists’ resilience and urges listeners to seek strength and inspiration from the ongoing Poor People’s Campaign and from historical struggles.
• Quote:
  • “If we claim to be the children of Martin and Mega and Dorothy Day… if we are their descendants, then standing down is not an option. We lose only when we get quiet.”
    — Rev. Dr. William J. Barber II (61:55)

6. The Moral Call to Action (Closing) (63:29–64:11)

• Cross-movement Appeal:
  Listeners are encouraged to draw inspiration from legal and theological luminaries—Marshall and Ginsburg—and to join the national Poor People’s Campaign.

Memorable Moments & Quotes

• “The law may not make you like me, but the law may keep you from lynching me.”
  — Rev. Dr. William J. Barber II (54:15)
• “We are not of those who shrink back unto destruction, but we are those who persevere unto the salvation of the soul. For faith is the substance of things hoped for, the evidence of things not seen.”
  — Rev. Dr. William J. Barber II (61:05)

Important Timestamps

• Masterpiece Cakeshop summary: 02:17–04:50
• Media misreporting discussion: 04:50–10:09
• Scope & holding of the decision: 10:09–17:11
• Tactical court alliances: 22:43–25:09
• Faith and the Constitution: 35:35–38:41
• Fusion politics & movement-building: 44:07–49:20
• Religious freedom vs. public accommodation: 49:20–54:53
• Advice to the fatigued/resilient: 54:53–62:49
• Moral call to action: 63:29–64:11

Final Takeaways

• The Masterpiece Cakeshop decision was a narrow, fact-bound ruling that avoided a transformative change in doctrine. Legal nuance was largely lost in public reporting.
• Rev. Dr. Barber argues for reclaiming American constitutional and religious language from narrow, exclusionary interpretations, pushing for “fusion politics” and a deeply moral, cross-issue movement against contemporary injustices.
• Both segments underscore the ongoing struggle to balance legal rights, social justice, religious liberty, and dignity in American law and society.

This summary provides a comprehensive and engaging guide to the episode, capturing its central arguments, notable moments, and the powerful blend of legal analysis and moral advocacy.