Masterpiece Cakeshop and the Constitutionalization of “Both Sides”-ism

Noah Zatz

mastercakeAt first glance, Masterpiece Cakeshop v. Colorado Civil Rights Commission appears not to be among the more important of this past term’s disastrous Supreme Court opinions. It was issued much earlier than the June blockbusters and has widely been treated as a bullet dodged, allowing a Christian conservative baker to refuse to make a cake for a same-sex wedding but not setting much of a precedent. But something more insidious may be seen at work if one revisits Masterpiece Cakeshop (allowing anti-gay discrimination if it is religiously motivated) in light of not only the travel ban opinion (allowing anti-Muslim discrimination if it is adorned with paperwork) but also the recent “civility” eruption.

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Gender Inequality and the Infrastructure of Social Reproduction

Julie Suk – 

Our jurisprudence of sex equality imagines a world without prescribed gender roles in the family and the public economic and political spheres. Almost fifty years ago, the Supreme Court repudiated the “separate spheres” tradition, which confined women to role of unpaid caregiver in the family and home, while reserving breadwinning and public power to men. Yet, neither constitutional equal protection nor statutory employment discrimination law acknowledges that the separate spheres tradition formed the infrastructure of social reproduction in our political economy. Mothers at home raised the next generation of citizens-workers without pay or rights. It was an unjust infrastructure, premised on women’s subordination, but it served an enduring social need.

Today, no alternative infrastructure of social reproduction has emerged to replace the unpaid contributions of full-time mothers and homemakers. School days did not expand to match the schedule of mothers working full-time, and the definition of full-time work did not shrink to enable its participants to devote much time to the duties of child-rearing. In the absence of a robust state system of social support, working families attempt a range of uncoordinated, expensive market-based improvisations towards gender-equal relations in the home and in the public sphere. The result is an eroded and unjust infrastructure of social reproduction whose burdens fall especially hard on women; the remaining gender pay gap is largely a motherhood gap. Furthermore, poor women, often migrants, are doubly burdened when they are employed to meet the care needs of more privileged households, while caring for their own families at home. Employment anti-discrimination law was intended to counteract sexist stereotypes, but a fuller sex equality requires a new infrastructure of social reproduction.

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