Cakes and Conscience

300px-supreme_court_front_dusk*This post originally appeared on the Land Center blog at https://thelandcenter.org/cakes-and-conscience/.

The Supreme Court heard oral arguments on December 5 in the highest profile case of this term. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission is an important First Amendment case with significant implications for both freedom of speech and freedom of religion.

Jack Phillips is the owner of Masterpiece Cakeshop, a bakery in the Denver area. In 2012 Phillips was asked to bake a cake for Charlie Craig and David Mullins to celebrate their same-sex wedding ceremony. Phillips refused to bake the cake, and he was subsequently found in violation of Colorado’s anti-discrimination statute. Amy Howe reports, “The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had ‘no free speech right’ to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.”[1]

Based on his convictions as a Christian, Phillips believes that only a man and a woman can enter into marriage. Therefore, he refuses to design wedding cakes for same-sex ceremonies. Phillips also refuses to design cakes to celebrate Halloween, divorce, or any message he considers to be lewd.

What is at stake in this case? There are a few points of particular interest to free speech and conscience protections involved in this case.

First, can the government compel speech? When we think of free speech, we generally think about the prohibition against government restricting speech. In this case, Jack Phillips wants to restrict his own artistic expression, which he argues is a form of speech, but the state of Colorado is attempting to compel him to make artistic expression that violates his conscience. Compulsion of speech is a direct violation of the First Amendment. The question is whether artistic expression through custom-designed wedding cakes is protected speech.

Second, does religious freedom extend beyond the walls of a place of worship? Phillips argues that he has the right to express his religious convictions through the bakery that he owns. He closes the store on Sundays, and he refuses to bake items celebrating various activities that violate his religious convictions. There has been a trend in recent years to see religious freedom only in the context of formal worship; however, religious freedom has not always been interpreted in such a way. Phillips claims that his religious freedom extends beyond the church and into the public square where he operates his business. The decision in this case has the potential to set a significant precedent for how freedom of religion and freedom of conscience will be applied for generations.

Third, does protection against “dignitary harm” supersede other constitutional rights? In his amicus brief for this case, Sherif Girgis defines dignitary harm as “the harm of being told (even by polite refusals) that decisions central to your identity are wrong.”[2] Andrew Walker notes, “The rise of ‘dignitary harm’ arguments aims to achieve desired legal outcomes on the basis of a perceived slight or personal offense.”[3] In essence, dignitary harm arguments are built on the idea that a person has the right not to be offended. If one is offended he can then sue the person who offended him. The responsibility is then upon the prospective offender not to offend even though there is no way for him to know for certain whether or not what he might do or say could offend someone else. Recent cases, especially related to same-sex marriage, have raised the profile of dignitary harm. The most substantial problem with this line of argumentation is that the opinions of the majority tend to be protected and the minority is most likely to commit dignitary harm. In contrast, most of the rights protected in the First Amendment are designed to protect the minority opinion from discrimination, not the reverse. The Court would be right to see Phillips as the one whose opinions and decisions should be protected.

What can we expect as the outcome of this case? It is difficult to say. Numerous reports suggest that the majority of justices are leaning toward support of Jack Phillips, but Howe warns us that “making predictions based on oral arguments is always dangerous.” In the coming months we should hear a decision from the Court, and it will likely prove to be the most significant religious liberty decision in generations.

[1] Amy Howe, “Argument analysis: Conservative majority leaning toward ruling for Colorado baker (UPDATED),” SCOTUSblog, December 5, 2017.

[2] Sherif Girgis, “Brief of Amicus Curiae Sherif Girgis Supporting Petitioners,” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 2.

[3] Andrew T. Walker, “Into the looking glass: Why the impact of Masterpiece Cakeshop at the Supreme Court matters,” ERLC.com, December 5, 2017.

Radio Interview about First Freedom

knowingthetruth-kevinbolingToday I had the privilege to join Kevin Boling on his radio program “Knowing the Truth” out of the Greenville, SC area. I have known Kevin for several years now and have been honored to join him on his show a few times.

In this interview, we discussed the new edition of First Freedom: The Beginning and End of Religious Liberty. I contributed a chapter to that volume entitled, “Religious Liberty and the Gospel.”

Over the course of our discussion we covered some of the biblical context for religious liberty, the connection between America and the ancient Roman Empire, and implications of religious liberty for all religions.

You can listen to the interview here. You can purchase a copy of the book on Amazon or other book retailers (as of Oct 17, the first print run of the book sold out, but the publisher assures us that more copies will be available sooner than Amazon currently reports).

Religious Liberty and the Gospel

91cer-paj4lReligious liberty has become a major topic of discussion in this current political cycle. There are worries about presidential candidates or potential Supreme Court justices who may scale back the freedoms that have been enjoyed by Americans for more than two centuries. However, not everyone understands the full extent to which religious liberty should be applied.

Many people consider religious liberty to mean the freedom to worship at whichever house of worship you choose. However, the free exercise of religion extends to all aspects of life, especially the right to share your beliefs with others. In the second edition of First Freedom (which becomes available on Oct 15), I write:

With the First Amendment’s promise that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” adherents to all faiths were guaranteed the right to the free exercise of religion. As a result, religious groups were free to take to the highways and byways to proclaim what they believed. The right to religious liberty ensured that Christians and others would have the freedom to gather for worship, change their religious beliefs, and proselytize. However, such freedom is a delicate balance. No one religious tradition can be privileged over another. The predominant religion of one generation may be the minority in the next.

The religious liberty we enjoy today is much like the unique features of the Roman Empire that aided the spread of the gospel in the first century. The network of roads between major commercial cities, the common Greek language spoken throughout the empire, and the relative peace brought by Roman military dominance assisted the early believers in taking the message of Christ throughout the empire.

Today’s political landscape is vastly different from first century Rome, but the religious nature of society is similar. We live in a syncretistic culture where people pick and choose what they want to believe. While this may seem like a detriment to the overall religious health of our American culture, it can also serve as an aid in sharing the gospel. Christianity should not be privileged in an environment of religious liberty, but I believe it can win the day in the marketplace of ideas when we take the opportunity to proclaim its truth.

In the closing paragraphs of my chapter in First Freedom, I note:

Religious liberty does not give Christianity a privileged position in the culture. In theory this freedom puts all religions (or even the lack of religion) on equal footing. Consider this for a moment. The next time Mormon missionaries knock on your door and try to convince you that the Church of Jesus Christ of Latter Day Saints is the restoration of the true church and that you need to be baptized in their church in order to enjoy the benefits of salvation, remember that they are exercising religious liberty. The next time that the Muslim community decides to build a mosque in your neighborhood (or even next door to your church), remember they are exercising religious liberty. Since religious liberty guarantees us the right to exercise our faith freely, the government cannot coerce what we believe to be false religions to give up their beliefs or plans for worship. Thus, religious liberty ought to motivate us to share the gospel. In a country where religious liberty is currently protected, we should take advantage of this freedom and reason with others, persuading them to hear and receive the gospel.

This is the unique connection between religious liberty and the gospel. May we not take for granted our liberty and fail to share the truth with a lost and dying world.

If you want to read more about religious liberty, let me encourage you to pick up a copy of First Freedom: The Beginning and End of Religious Liberty from Amazon or any other book retailer starting October 15. To see more about the book and contributors, visit the page of one of the editors, Jason G. Duesing.

Hobby Lobby Wins Religious Freedom Victory

Supreme_Court_US_2010*Co-authored with Trey Dimsdale

In the highly anticipated decision of Burwell v. Hobby Lobby, the Supreme Court issued a victory to closely held for-profit corporations on the issue of religious liberty. While the decision was not as sweeping as some may have wanted—or as Justice Ginsburg claimed in her dissent—the Court’s decision upheld the idea that Americans need not check their right to religious liberty at the door when they enter the business world.

At issue for the Green family, owners of Hobby Lobby and Mardel, and the Hahn family, owners of Conestoga Wood Specialties, was the fact that the government compelled them to violate their deeply held religious beliefs by providing abortifacient birth control drugs and devices to their employees as part of their employer-provided healthcare plans. The Greens and Hahns specifically believe that life begins at conception and any measure that extinguishes the life of a human embryo is a violation of that belief. As such, the Health and Human Services birth control mandate would cause them to violate their consciences.

One of the key issues before the Court was whether or not for-profit corporations fit the legal definition of a person for the sake of exercising religious liberty. In the summary of their decision, the majority of the Court noted, “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

In a further explanation of this protection, the Court noted the Third Circuit’s argument that for-profit corporations “do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” In response to this conclusion, the Court stated, “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”

In making these statements, the Supreme Court tied the actions of closely held for-profit corporations directly to the actions and beliefs of their owners. Specifically, the Hahns and Greens can exercise their belief that life begins at conception through excluding certain types of birth control from their insurance plans.

The heart of this decision is in the Court’s determination that a corporation is a “person” under the meaning of the Religious Freedom and Restoration Act (RFRA). RFRA establishes a very specific test which federal courts must apply in cases that deal with government action that infringes on a person’s free exercise of religion. HHS argued, and at least one appellate court agreed, that corporations are not “persons” capable of exercising religion. In that case, the RFRA would not apply to the issue before the Court. The Supreme Court, however, held that (in at least the case of closely held corporations), corporations areentitled to the protections offered by RFRA. The fact that corporations are not capable of participating in religious activities is irrelevant. In short, the Supreme Court recognizes that Hobby Lobby, Mardel, and Conestoga Wood Specialties are legitimate vehicles for the exercise and expression of their owners’ religious convictions.

This is a clear victory for business owners who believe that life begins at conception and that the HHS mandate violates such a belief. In keeping with the First Amendment and RFRA, owners of closely held corporations can exclude abortifacient birth control measures from their healthcare plans.

A second issue presented in the Court’s decision is that the government cannot determine certain religious beliefs are invalid because they do not like them. The Court argues, “Arrogating the authority to provide a binding national answer to this religious and philosophical question [i.e., that providing these birth control measures enables the commission of an immoral act], HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.” Thus, HHS claimed it had the right to determine if the Greens and Hahns held a valid religious belief. The Court clearly held that is not the job of the government. The majority went on to say, “Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’ whether the line drawn reflects ‘an honest conviction,’ . . . and there is no dispute that it does.”

If the government had its way, the Court argued that it could have excluded religious owners from the business world. According to the government’s argument, no insurance coverage mandate would have violated the RFRA, including third-trimester abortions and assisted suicide. The Court responded, “The owners of many closely held corporations could not in good conscience provide such coverage, and thus the HHS would effectively exclude these people from full participation in the economic life of the Nation.” Thankfully, the Court disagreed.

What does this mean for Christian business owners? Specifically related to the HHS mandate, owners of closely held corporations cannot be compelled to provide abortion-inducing drugs and devices as part of their healthcare plans. The Court’s decision in Burwell v. Hobby Lobby is only applicable to closely held corporations. These are businesses which are organized under state law as corporations but are owned by a small number of individual shareholders. The companies involved in this case are all closely held, family-owned businesses. This is different from publicly held corporations that may have any number of shareholders who have invested money in the business.

Many people in our churches are likely to be part of such businesses. While they may not always have the number of employees that require mandatory health insurance coverage, there is potential that their businesses could grow to that point just as Hobby Lobby, Mardel, and Conestoga Wood Specialties.

This case could also foreshadow how the Court may decide other related cases, such as the cases involving the Little Sisters of the Poor and religious educational institutions. Subsequent Supreme Court decisions could extend similar religious freedom protections and exemptions to other types of organizations that Burwell v. Hobby Lobby does not.

We can rejoice in today’s victory for the Greens and Hahns, but there is still much work to be done in protecting religious liberty for people of faith in the marketplace.

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Trey Dimsdale, J.D., serves as Research Fellow in Law and Public Policy for the Land Center for Cultural Engagement at Southwestern Baptist Theological Seminary in Fort Worth, Texas. He is also one of my Ph.D. students in ethics.

Are Corporations People Too?: Hobby Lobby and Religious Liberty

Supreme_Court_US_2010Who would have ever imagined that a craft store chain owned by a Christian family would be at the center of a Supreme Court case about sexuality, abortifacient drugs, the role of corporations, and religious liberty? Oral arguments were heard today in the Supreme Court case Sebelius v. Hobby Lobby. The central point of the case is whether or not the Green family, owners of Hobby Lobby and Mardel Christian bookstores, has the right to exercise their religious freedom in opting out of the Health and Human Services (HHS) mandate requiring employer-provided health plans to offer emergency birth control drugs at no charge to their employees. The Greens have objected on religious grounds that such emergency birth control options are tantamount to abortion and that providing abortion-inducing drugs is a violation of their deeply held religious beliefs.

Trying to predict what the Supreme Court will decide is an exercise in futility, so I will not go down that road. However, I do want to highlight a few interesting notes from today’s oral arguments.

The first is not all that surprising (and possibly not all that interesting)—the high court appears divided. From the best one can tell from the questioning, the Supreme Court is split 4-4 with Ginsburg, Breyer, Kagan, and Sotomayor apparently siding with the government and Roberts, Thomas, Scalia, and Alito leaning towards Hobby Lobby. This leaves Justice Anthony Kennedy as the deciding vote in an otherwise divided Court. This is familiar territory for the current version of the Supreme Court.

The second item of note is that the role of a corporation seems to be a big question. Some of the liberal justices seemed to imply that corporations should simply be able to pick up the tab for the healthcare expenses or fees for not providing healthcare with no impact on the business or the economy. They did not seem to take into account that these healthcare costs have to be paid by someone and that the costs would most likely be passed along to the customer. Justices Kagan and Sotomayor also pressed Paul Clement, the attorney arguing for Hobby Lobby, about whether corporations could opt out of other healthcare options for their employees. Lyle Denniston reports that they “suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable.”

On the other hand, Justice Alito pushed back against Solicitor General Donald Verrilli regarding the purpose of corporations. He asked the Solicitor General if the only purpose of corporations was to “maximize profits.” If the object is only to maximize profits, then corporations would have no other rights. However, if corporations serve other purposes, then they might have the right to protection under the free exercise of religion clause in the First Amendment.

The third item is the most interesting development in my opinion. It relates to the rights of a corporation to make a claim regarding discrimination. The government argued that for-profit corporations like Hobby Lobby have no standing to file a claim against the government based on religious discrimination. On the surface this seems to make sense because corporations are not churches, nor are they individuals with religious beliefs. However, the government has already held that corporations can file claims based on racial discrimination. In the same sense, corporations are not individuals of a particular race or ethnicity. The racial discrimination claims have typically been based on the race and ethnicity of the owners.

Applying the same standard to the religious freedom aspect of the Hobby Lobby case, it would appear that the Green family’s deeply held religious beliefs (and clear articulation of those beliefs in company documents) would provide the corporation with the same protections as those guaranteed to them as individuals. This argument could prove to be central in the upcoming decision of the Court.

Once again, we will be left to wait for months until hearing the decision of the Supreme Court that will most likely come in June. Until then, it is futile to speculate what the Court will decide. However, there is one thing that we can do. We can pray for the justices of the Supreme Court that God would grant them wisdom in judging these matters. We should pray for godly wisdom that they would rule according to God’s will. We should pray that they would value life in the way that God values life—seeing those in the womb as no different than a full-grown adult (Psalm 139:13–16).

I urge you to join me in prayer for John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. The future of religious liberty in the United States is in their hands.
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Lyle Denniston, “Argument recap: One hearing, two dramas,” SCOTUSblog, March 25, 2014.

Derrick Morgan, Hans von Spakovsky, and Elizabeth Slattery, “How the Supreme Court Justices Reacted to Today’s Hobby Lobby Arguments,” The Foundry, March 25, 2014.

Ilya Shapiro, “Is There No Alternative to Forcing People to Violate Their Religious Beliefs?” Cato Institute, March 25, 2014.

Radical Reformation and Religious Liberty

Today I had the privilege of speaking in chapel at Southwestern Baptist Theological Seminary for our annual Radical Reformation Day chapel. Dr. Patterson had asked me to speak on the issue of religious liberty. You can watch or listen to the entire message here, but I also want to provide you with some highlights.

Historically, the Anabaptists fought for religious liberty all the way to the point of death. They believed that the church and state should not be wed in a way that the state enforces doctrinal purity by punishing those who believe or promote false doctrine. The Anabaptists believed that the state’s role was limited to protecting peace and order in society. Since the state could not coerce beliefs, then the Anabaptists also believed that conversion cam on the basis of persuasion through the Word of God rather than at the point of the sword. Finally, the Anabaptists taught the free exercise of religion in that heathens and heretics were to be allowed to continue in their unbelief. No one had the right to coerce them to change.

There is much more to discuss, but this gives you the historical highlights. I hope you enjoy the message as much as I enjoyed preparing and delivering it.

Radical Reformation and Religious Liberty

Government, Religious Liberty, and Women’s Health

There is an excellent article posted today on Public Discourse by Helen Alvare addressing the issues of government, religious liberty, and women’s health. Here are some of the highlights.

On the issue of the administration’s campaign targeting women:

The result is an administration—led by men, but fronted by women—blatantly in favor of the view that to be “for women” (and to be super cool), you should support casual sex and the free contraception that facilitates it. The Obama campaign’s real message about the HHS mandate translates as follows: If you object to coercing religious institutions into sponsoring free contraception, you are no friend to women.

On the threat to religious liberty:

Any American citizen or institution that visibly opposes this powerful alliance might realistically worry about its future. This is new for Christians in America. In decades past, only the most extremist abortion interest groups—e.g., Planned Parenthood and the National Abortion Rights Action League—visibly denounced the beliefs and practices of Christian churches regarding human sexuality, marriage, and family. But today, these groups command the prime-time podium at the Democratic National Convention, and count the president of the United States as their closest political ally.

On the challenge for Christians:

Instead, for the good of women and the good of society, Christians must engage in a hard conversation: what does women’s freedom truly include? Christian citizens, Catholics in particular, must explain why their witness on contraception contributes to, and doesn’t derogate, women’s long-term flourishing. These conversations must certainly deal with the world as it is—culturally, politically—but can never forget to speak of the world as it ought to be, the world parents hope to leave to their daughters and sons.

Christian churches need to be frank about what they are proposing concerning sex, parenting, and marriage. They shouldn’t hide the ball; that rightly infuriates people. And they should especially remember those people who often slip through the cracks, who are forgotten or ignored by the alliance of Planned Parenthood and the federal government: our poorest and least educated fellow citizens who suffer the most from the loss of a healthy marriage culture.

I’d like to encourage you to read the entire article. It appears that it will also include two more follow-up pieces in the days to come. You can find the article here.

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Helen Alvare, “Planned Parenthood and the Government v. Religious Liberty and Women’s Wellbeing,” Public Discourse, December 4, 2012.