A First Step for the First Freedom: Masterpiece Cakeshop v. Colorado Civil Rights Commission

300px-supreme_court_front_duskThe Supreme Court of the United States released its decision on the highly anticipated Masterpiece Cakeshop v. Colorado Civil Rights Commission case on June 4. In a 7-2 decision, the high court sided with Jack Phillips, the owner of Masterpiece Cakeshop, noting that his First Amendment right to freedom of religious exercise was violated.

While the split among the justices was a wide margin of 7-2, the opinion of the Court is being described as a narrow due to the scope of the decision. Justice Kennedy, writing for the majority, noted:

Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. . . . The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.

In essence, commissioners on the Colorado Civil Rights Commission expressed animus regarding the religious beliefs of Jack Phillips and were unable to adjudicate the merits of his claim due to such animus. Thus, Phillips’ rights were violated because his deeply held religious beliefs were judged unfairly by the commission.

Kennedy also noted that the commission had treated other similar cases differently. On three separate occasions, the commission ruled in favor of bakers who refused to produce cakes with messages that disapproved of same-sex marriage while also bearing religious texts. The commission allowed those bakers to refuse service but still compelled Phillips to produce cakes in support of same-sex marriage.

Kennedy concludes his opinion by emphasizing the narrow scope of the opinion. He writes:

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the ruling of the Commission and of the state court that enforced the Commission’s order must be invalidated.

What does this Supreme Court decision mean for religious liberty? On one hand, it is a victory for Jack Phillips and others whose religious liberty has been violated because government officials disagreed with their religious beliefs. On the other hand, this case does not set a clear precedent moving forward for religious liberty on a wider scale.

Those who oppose same-sex marriage on religious grounds have increasingly found themselves on the outside looking in. The general attitude toward same-sex marriage in the United States has rapidly become more favorable since the Obergefell decision in 2015. As a result, it is likely that many business owners who refuse to promote same-sex marriage with their goods and services will face similar ridicule and animosity on the part of those adjudicating their cases in the courts. In such circumstances, this case sets a helpful precedent because religious beliefs must be considered with neutrality in the courts and commissions. Thus, anyone who faces such animosity can immediately use this Masterpiece Cakeshop opinion to find remedy.

What this case does not do is set a precedent for all business owners to refuse service in matters of same-sex marriage. Kennedy notes this limitation in his opinion, and Justice Thomas makes it even clearer. Thomas writes:

In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

This case gives a temporary and limited victory to proponents of traditional marriage. For the time being, the “new orthodoxy” of same-sex marriage has not overrun those who believe that God created marriage to be a union between one man and one woman. However, this case does not give blanket protection in the future. It is a first step in the protection of our first freedom in the United States, but further steps are still necessary.

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Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018). Full text of the opinion is available at https://www.supremecourt.gov/opinions/17pdf/16-111_new_d1of.pdf.

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.

Politics and Ministry

240px-2016_presidential_election_ballotOver the past several weeks, I have been asked more about politics than I can ever remember. The situation with the current presidential election has created as much discussion as the Bush-Gore fiasco of 2000. At Southwestern Baptist Theological Seminary, we have sought to be a voice of reason during the contentious election cycle. As part of that reasonable voice, I have participated in two discussions over the last week about politics and its implications for ministry.

Today I spent about half an hour discussing politics and ministry on Facebook Live as part of Southwestern’s “Ask the Expert” series. Despite the obvious failings of this “expert,” it was a fun experience with some good questions. You can find the video below.

Last Thursday I was part of a panel discussion with Dr. Paige Patterson, president of SWBTS, and Rep. Matt Krause, Texas State Representative from District 93. We had a wide ranging discussion about law, politics, church, and religious liberty. The video from that discussion will be available on the Seminary’s YouTube channel in the coming days.

 

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.

Religious Liberty as the Foundation for Pro-Life and Pro-Family Policies

Just over three weeks ago, I spent several days in Salt Lake City attending the World Congress of Families IX. I was privileged to speak during one of the plenary sessions on the closing day of the congress. The title of my session was “Religious Liberty as the Foundation for Pro-Life and Pro-Family Policies.” Video from my session (and many others) is now available on the WCF YouTube channel.

As part of my presentation, I noted that there are three distinct areas where we can see the influence of religious liberty in support of pro-life and pro-family policies. These three areas are marriage, healthcare, and education.

In my conclusion, I noted the following:

At the end of the day, religious liberty sets the foundation upon which we can build the best pro-life and pro-family policies. However, these policies are not simply going to come about because a nation has religious liberty protections. Such policies are still dependent upon people of faith exercising their beliefs in the public square to give a convincing argument for why God’s design for life and family is the most beneficial for the good of society. It is when people of faith practice their faith in a society that respects their right to freely exercise such faith that we will see the most effective pro-life and pro-family policies.

I was honored to be a part of the program for the World Congress of Families. The mission of WCF is to “provide sound scholarship and effective strategies to affirm and defend the natural family, thus encouraging a sustainable and free society.” This was the first congress held in the United States. I attended my first congress in Warsaw, Poland in 2007.

On a personal note, it was fun to “teach” a little Baptist history to such an ecumenical group. In fact, most of the questions I received throughout the rest of the day related to church history. It reminded me how little people know about the history of Christianity and how important it is to continue teaching our history as Christians (and Baptists).

The Threat to Religious Liberty from Inside the Church

prayerEven in our truncated news cycle where this hour’s breaking news is yesterday’s story in a matter of minutes, the issue of religious liberty has maintained a lingering presence in the American consciousness for most of the last few months. From the rhetorical flourishes of the Obergefell v. Hodges decision and dissents to the jailing and release of a county clerk in rural Kentucky for refusing to issue same-sex marriage licenses, much has been made of this “first freedom.” While we typically think of threats to religious liberty coming from an increasingly secular culture, the most dangerous threats actually originate from within the church.

The first threat to religious liberty from inside the church is ignorance. Like many Christians, I have found myself struggling to articulate a biblical basis for this freedom. There is no passage of Scripture to which we can turn and read, “Thou shalt not infringe upon the religious liberty of your fellow citizens.”

What should we do, then? Should we dismiss religious liberty as an American invention that conveniently serves those of us who sometimes find ourselves outside of the mainstream culture? This should not be the case if we remind ourselves of the historical and biblical basis for this freedom and overcome the ignorance that threatens to undermine it.

The Anabaptists cited several texts of Scripture to support their claims for religious liberty. Matthew 13:24–30 is Jesus’ parable of the wheat and the tares. In this parable, we see that an enemy has sown bad seed amongst the field of wheat. Rather than pulling up the tares and risk destroying some of the wheat, the farmer tells his slaves to allow the wheat and tares to grow up together. It is at the time of the harvest that the tares will be thrown into the fire and the wheat will be stored in the barn. For the Anabaptists, this was evidence that there would be people who would arise in the community and even the church that were sown by the enemy. These are heretics and heathens who do not belong but are allowed to remain so that the true believers will not be harmed by their removal. This does not mean that believers neglect to share the Gospel with these individuals, but that the true judgment is left up to God. It is not the job of the government to judge and remove these people for their unbelief. God will judge them, and His judgment is final.

We also see the biblical foundation for religious liberty in the government’s role of ensuring civil peace, not doctrinal purity. This particular teaching can be found in Romans 13:1–7. Notice some key concepts about government that we see in this passage. First, government is ordained by God. It is God who has given government its authority. It does not have any authority that He has not given it. Second, we are to submit to the government’s authority because we submit to God. Refusing to submit is to oppose the ordinance of God. Third, government functions within the scope of authority God has granted it. The government is a minister of God for those who do what is good. It exacts punishment on those who do what is evil. This is not a theological function but a civil one. Its role is to keep peace and restore order when that peace is violated.

The final biblical foundation for religious liberty we want to consider is that we have the right to persuade others of the Gospel. In Acts 18:12–17, we see that Paul is brought before Gallio and accused of disturbing the peace in Corinth. Notice the specific charge: he is accused of persuading people to worship God in a way contrary to the law. Before Paul can even defend himself, Gallio dismisses the case. He is not concerned with Jewish laws or customs of worship. Paul is free to do as he pleases, persuading men to follow Christ. The Jews exact their revenge on Sosthenes, but the government official is unconcerned about the religious dispute that is brought before him. In the very next chapter, Paul spends months in Ephesus speaking out boldly, reasoning, and persuading people to follow Christ. When he can no longer do so in the synagogue, he moves to a public forum. Over and over, we see the apostles reasoning and persuading men to follow Christ. No one is coerced to confess Christ on threat of his/her life or livelihood. People are free to accept or reject Him.

These biblical principles set a foundation on which we build the idea of religious liberty. Implicit in the text of Scripture is the idea that government has a specific function. It cannot tell people what they are to believe about God. At the same time, the church does not have the authority to use force in converting unbelievers. Therefore, both heathen and believers coexist in this world until the day of God’s judgment. It is our duty to warn, exhort and persuade these unbelievers with the Gospel, but we cannot force conversion upon them.

The second threat to religious liberty originating inside the church is arrogance. This is the idea that Christianity (and particularly conservative, evangelical varieties) is guaranteed protection while all other forms of religion are not worthy of protection against unwarranted government intrusion or restrictions. This attitude stems from an arrogance that has been developed since the days when proto-evangelicals, and Baptists in particular, were not the favored denomination.

Recent examples of this threat have been seen as some Christian leaders have attempted to block the building of houses of worship and cemeteries by religious groups that do not garner the political favor of the citizens in those locales. The fear in some of these cases is that a particular religious group will gain a majority in the government and begin to restrict the liberties of others. As long as the liberty being granted does not infringe upon the liberty of other religious groups, then such restrictions can only be classified as arbitrary. Any attempt to have a government entity impose arbitrary restrictions against a religious group that happens to find itself out of favor with mainstream citizens at this time will result in restrictions against our own religious preferences in the future.

If this type of arrogance is not corrected, then we as evangelicals—and Baptists in particular—will face the consequences of our own arrogance. The tables will turn when our religious preferences are not the preferences of the culture. In fact, that has already begun to happen. However, when we appeal to religious liberty claims to protect our own consciences, our appeals will ring hollow because we fought for discrimination against others when their time had come. This may actually be the most significant challenge to religious liberty in our day, and we are the source of that challenge.

Should we be concerned about the infringement of religious liberty from a secular government and culture? Certainly. But we also need to address the threats to religious liberty coming from our own camp—inside the church. This is a battle on two fronts. We must be prepared to stand for religious liberty both inside and outside the church.

*This post originally appeared at Theological Matters, the blog of Southwestern Baptist Theological Seminary.