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A Neoliberal Masterpiece?


Kate Redburn (@k_redburn) is a Postdoctoral Research Scholar at Columbia Law School, a PhD Candidate in history at Yale University, and a former Managing Editor of the LPE Blog.

Amy Kapczynski (@akapczynski) is Professor of Law at Yale Law School. 

In our market supremacist era, is anyone allowed to bring their full self to the marketplace and the workplace?  Or must we all be “everywhere and only homo oeconomicus,” as Wendy Brown put it?  One of the more arresting aspects of the Supreme Court’s recent Masterpiece Cakeshop case is how neoliberal it isn’t. If neoliberalism casts us all as imbued with equal dignity as consumers, and all equally debased in the workplace, Masterpiece points to a world where markets treat some of us decidedly more equally than others.

What might it mean for our understanding of how neoliberalism works, both broadly, and in relation to a Court that elsewhere shows itself soaked in neoliberal thought?

The Masterpiece case began in 2012, when a gay couple entered Masterpiece Cakeshop in the Denver suburbs and asked the proprietor, Jack Phillips, to bake them a wedding cake. He refused, citing his religious objection to same-sex marriage. The couple filed a complaint against him with the Colorado Civil Rights Division, which they won. Phillips appealed, eventually to the Supreme Court, arguing that the administrative decision violated his First Amendment rights to free speech and free exercise of religion. Justice Kennedy and six other Justices ruled for Phillips, but deferred the core First Amendment questions (with some commentary along the way), ruling instead on the ground that the Civil Rights Commission that heard the case was influenced by anti-religious bias (most dubiously, as Noah Zatz wrote over the summer).

Did the majority point us toward a new rule for balancing anti-discrimination law with religious freedom? Reva Siegel and Douglas NeJaime suggest not. Despite efforts by the right to advance “complicity-based conscience claims,” which prioritize the views of religious objectors over those of other citizens, they argue that Masterpiece “affirm[s] an approach to public accommodations law that limits religious accommodation to prevent harm” to third parties. They argue that by citing civil rights-era public accommodations cases, and explicitly acknowledging the potential harm of religious exemptions to gays and lesbians, the Court made clear that “public accommodations laws continue to serve important social ends,” and wished to guard against material or dignitary harm to gays and lesbians.

The shelf life of these sentiments, particularly after Kennedy’s departure, remains to be seen. Even if the Court rejects conservative efforts to eviscerate the meaning of public accommodations law as it applies to those who can claim religious objection, recent jurisprudence under the Free Speech Clause leaves cause for concern. The Court may decide that public accommodations protections for LGBT people impermissibly compel speech, insofar as people like Phillips claim that wedding cakes for gay couples constitute protected “expression.” There are hints of this, too, in Masterpiece: The majority recounts Phillips’ position with sympathy, explaining that he “likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.” When the Court next takes this issue up, and court-watchers expect it will be soon, it may well deploy the weaponized First Amendment to create an exemption for “expressive” behavior — whatever that might mean (cake baking? candlestick making?) — that contradicts sincerely held religious beliefs. (For more on the weaponized First Amendment, see Jed Purdy’s recent piece in The Nation.)

While conservative Christians may look forward to special solicitude to bring religion to work, LGBT people remain excluded from federal employment protections. There is no federal or constitutional protection from employment discrimination on grounds of LGBT status, and though some states have passed more protective laws, it is still legal to discriminate against or fire someone for being queer or trans in 28 states. The Trump Administration has made the situation worse by rescinding anti-discrimination protections for federal contractors and arguing in federal court that Title VII does not cover LGBT workers. The disciplining effect is clear; LGBT people are not free to bring their full selves to work, lest they risk their jobs and their livelihoods. The Becerra case, also from the most recent Supreme Court term, shows the same logic – workers at Catholic “crisis pregnancy centers” are allowed to mislead women in the service of their deeply personal religious convictions, but women are not entitled to a marketplace that serves them equally, whether their interest is in adoption or abortion. In both cases, the Court tells or suggests to conservative Christians that they need not assimilate to the generic marketplace. But when women and LGBT people seek employment or medical care, expecting to find “neutrality” in a zone of market activity that serves all preferences, they are instead denied services because of religious partiality.

What might this mean about the conservative Supreme Court in an age of neoliberalism? We could understand it as part of the neoliberal/social conservative alliance, following Melinda Cooper. Whatever the neoliberals meant by “market rationality,” perhaps that logic simply yields when it favors conservative social values. David Harvey describes neoliberalism as more a political than an intellectual formation, and the ascendancy of neoliberal policy in the United States clearly required an alliance with social conservatives.

Perhaps instead it points to a deeper conceptual instability within neoliberal thought. In his superlative new book Globalists, historian Quinn Slobodian shows that neoliberal theorists themselves have been divided about the project of dissolving all subjects into market-rational actors. Some, like Alexander Rüstow and Wilhelm Röpke, argued that neoliberalism should support the nuclear family, religion, white supremacy, and even attachment to rural land, while Friedrich Hayek and Ludwig von Mises countered that these preferences contradicted market rationality. Hayek and Mises seem to have won out. But can neoliberalism really be consistently committed to market rationality, while also depending on extra-economic institutions to prevent the system from devouring the market society it claims to support? Or does it instead require some domain of the “private” – here, designated as the family, there designated as forms of “expressive” religious conscience – to make room for forms of sociability that (partial, discriminatory though some may be) are central to non-market kinds of solidarity and social reproduction?

Maybe, instead, Masterpiece is a sign of the longed-for weakening neoliberal consensus, but manifested in a way that should alarm those who have urged this from the left. This version would portend a world that is less neoliberal, but more replete with the kind of status hierarchies that leftists cannot condone. Masterpiece Cakeshop points down this road, all too real: a broader re-embedding of the market in a society defined by conservative Christianity.

It suggests that Neo-Polanyian demands to re-embed the market in society may prove insufficient — the left, on this account, must insist on articulating the sort of society we wish to embed ourselves within. By extension, we might consider conflict over social values as a crucial front in the struggle against neoliberalism.