Tag: Same-Sex Marriage

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

~ Evan Lenow

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

~ Evan Lenow

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.

Christian Marriage in a Post-Christian Age

~ Evan Lenow

wedding rings“You are the light of the world. A city set on a hill cannot be hidden; nor does anyone light a lamp and put it under a basket, but on the lampstand, and it gives light to all who are in the house. Let your light shine before men in such a way that they may see your good works, and glorify your Father who is in heaven.” Matthew 5:14–16

The Supreme Court of the United States has ruled. June 26, 2015, is a date to be remembered for generations. According to the majority opinion of the Court, the Fourteenth Amendment provides a constitutional right for same-sex couples to marry. And according to Chief Justice Roberts’ dissenting opinion, the majority has also paved the way for polygamous and polyamorous marriage. So what are we to do now? How are Christians to live in a post-Christian age?

There is much to be said about the SCOTUS decision, but I will save that for another day. Right now I want to offer a positive spin on the future of Christian marriage in a post-Christian age.

I am fully convinced that by the time my children are old enough to marry, the status of marriage in the United States will be completely different than when my wife and I married over 12 years ago. This will create a number of challenges for us as parents and as Christians, but these are challenges that we can and should take on with confidence.

Here are a few thoughts about what Christians should do regarding marriage in a post-Christian society.

  1. Teach what the Bible says about marriage.

The foundational passage of Scripture about marriage is Genesis 2. In fact, when Jesus and Paul taught about marriage, they both referred back to the creation narrative to make their case. Genesis 2:24 reads, “For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.” There are a few key points that we see in this verse that are also affirmed in the New Testament.

  • Marriage is created by God to be monogamous. When we see the divine commentary on the first marriage in Genesis 2, we see the original model for marriage—“a man shall leave his father and his mother, and be joined to his wife.” When Scripture speaks of marriage, it speaks in terms of monogamy. Yes, polygamous marriage was a reality in the Old Testament, and a number of the early patriarchs participated in such marriages. However, in each case, polygamy led to very difficult marital circumstances. Jealousy, backbiting, and ridicule were the norm in these relationships. If you fast forward to the New Testament, Jesus and Paul both affirm the monogamous nature of marriage and appeal to the creation narrative in order to do so (see Matthew 19:1–12, 1 Corinthians 7:1–40, and Ephesians 5:22–33).
  • Marriage is created by God to be heterosexual. Before God instituted the first marriage, he had a choice. He had only created the man, and he declared that it was not good for him to be alone (Genesis 2:18). Thus, God decided to make a woman and bring them together in marriage. Thus, the first marriage was intentionally heterosexual in nature according to God’s design. Jesus affirms this directly in Matthew 19:4–6a when he says, “Have you not read that He who created them from the beginning made them male and female, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two, but one flesh.” Jesus declared that marriage was designed around the fact that God created male and female. This was the design of marriage in the garden of Eden. It was the design of marriage that Jesus upheld in his teaching. It is the design of marriage that we should teach.
  • Marriage is created by God to be permanent. The Supreme Court did nothing specific to undermine this aspect of marriage, but we have already been undermining it as a culture and the church for decades. In Genesis 2:24, we see that a man and his wife will join one another. The old KJV uses the term “cleave.” The idea is simple. The man and woman join together and become one. This is more than a partnership or contractual relationship. They become a single unit. After quoting Genesis 2:24, Jesus then gives a brief explanation of the verse. He says, “So they are no longer two, but one flesh. What therefore God has joined together, let no man separate” (Matthew 19:6). Notice the last phrase of the verse. We are not to separate what God has joined together. In a culture that celebrates individuality and recommends divorce when life gets difficult, we need to teach the permanency of marriage.
  1. Model biblical marriage in the church and culture.

Marriage is not a random social arrangement. It has clear public goods, such as ensuring that children have the right to be reared in the home of their biological mother and father. It is also the most effective and efficient way to move the next generation from helpless infants to productive members of society. But more than that, marriage is one of the clearest illustrations of the gospel that we have. It illustrates the relationship between Christ and the church. In Ephesians 5, Paul quotes the foundational marriage verse of Genesis 2:24 and then states, “This mystery is great; but I am speaking with reference to Christ and the church” (Ephesians 5:32). This is all part of his lengthy description of the relationship between a husband and wife. Thus, he declares that God’s design for marriage even in the garden of Eden was to point us to how he relates to his people.

Therefore, we should take the instructions of Ephesians 5 very seriously. Husband, love your wife as Christ loves the church. Care for her. Protect her. Sacrifice your own interests for her good. Wife, submit to your husband as to the Lord. Follow him. Respect him.

Even in the church, we have undermined biblical marriage by making light of the model that God created. We should not quickly jump to divorce as the answer to difficulty. We should not mock or ridicule our spouses for a cheap laugh. Instead, honor and cherish each other—just as our vows promised. If we follow the biblical model of marriage, our marriages will be different. They will be as a city set on hill giving a public witness to the world of the power of Christ in our lives and our marriages.

  1. Instill in our children the importance of biblical marriage.

For many of us, we have a historic understanding of marriage that will most likely not be impacted that much by the changes wrought by the Supreme Court decision. However, our children will grow up in a culture that will be inundated with unbiblical models of marriage. Already we are beginning to see commercials, children’s literature, and school curriculum seeking to normalize same-sex marriage, cohabitation, plural marriage, and divorce. There is no way to shield them from seeing these things, so we must learn how to counter them.

First, we need to model marriage in our homes. Make sure that your children see how you interact with your spouse in a godly way. Demonstrate the truths of Ephesians 5 right in front of them. Second, talk about biblical marriage with your children. I don’t ever recall having long conversations with my parents about God’s design for marriage, but it is not because my parents ignored the issue. They didn’t need to explain it to me. I saw it all around me—in our home, in our church, and in my school. That will not be the case for my children. We must talk about marriage as a key doctrine at all times in the model of Deuteronomy 6:7. Third, we must encourage our children to marry when the time comes. I recognize that some of our children will be called to singleness (1 Corinthians 7:8), but most of them (from a historical standpoint) will not. However, many in the next generation may see marriage as a pointless, cultural relic by the time they are old enough to get married. We must encourage marriage as God’s model for joining together in intimacy and rearing future generations. Without such encouragement, even Christian young people may give up on marriage.

So what should we do in light of the Supreme Court ruling? While we could start wringing our hands and fretting about what the future may hold, I believe we should instead redouble our efforts to live out the biblical model of marriage in a watching world. Trust me, the world is watching, and they will want to know why our marriages are different if we truly model the biblical pattern.

When Sunday and Monday Collide: Navigating the Same-Sex Marriage Dilemma

~ Evan Lenow

What impact does your faith have on the rest of your life? That is essentially the question posed by Tim Ryan of Fox 4 News (DFW) to Dallas County Clerk John Warren. On June 24, Ryan asked Warren if there is a different John Warren on Monday through Friday than there is on Sunday. Warren replied that he is not the same person when he is County Clerk as when he serves as a deacon in his church or resides at his home.

For Mr. Warren, the question presents a particular difficulty because he is the Dallas County Clerk, and his office is responsible for issuing marriage licenses to people getting married in Dallas County, Texas. In anticipation of the Supreme Court issuing a ruling in favor of same-sex marriage, his office is prepared to start issuing marriage licenses immediately. He is also a deacon in a Baptist church that has articulated a very clear position in its statement of faith regarding same-sex marriage. The church states:

SAME-SEX MARRIAGE – We believe that marriage is defined as being the legal union of one man and one woman as husband and wife. We also believe that only marriages between male and female, as ordained by God, is essential for the procreation of mankind (Genesis 1:27-28; 2:24; Matthew 4:5-6). The Mount Olive Baptist Church does not ordain nor recognize same-sex unions.

In the video (beginning at the 2:50 mark), Mr. Warren seems to give his approval (or at least non-opposition) to same-sex marriage and distinguishes his personal faith from his public responsibilities.

Is Mr. Warren correct in making such a distinction? For those who hold firmly to the traditional definition of marriage that limits marriage to one man and one woman, can you hold a public office that requires you to issue such licenses? What if your private sector job makes demands to affirm same-sex marriage? What should you do if your job requires that you violate your religious beliefs in any area? What should a believer do in such circumstances?

These are some of the questions that must be asked in light of the impending Supreme Court ruling on Obergefell v. Hodges expected in the next several days. Christians who work in county clerks’ offices are not the only ones needing to ask such questions. Elected officials, attorneys, insurers, teachers, and many other professions will be impacted if the Supreme Court rules that there is a constitutional right to same-sex marriage.

What should believers do if their jobs suddenly require them to affirm or promote a position on marriage that is inconsistent with their faith? Here are a few ideas:

  1. Work to secure conscientious objector rights in the workplace.

Historically, there have been professions which have secured protections against participating in an activity in the workplace that violates their religious beliefs. For example, pharmacists have the right not to fill prescriptions for abortion-inducing drugs if it violates their consciences. Some workplaces may be able to offer such protections regarding same-sex marriage.

  1. Seek a new role within your company or workplace.

While this option may not always be possible, you may want to pursue a transfer of roles within your company to avoid directly dealing with the issue that violates your conscience. In some cases, your employer may be more than willing to accommodate your request. Unfortunately, other employers may see this as an opportunity to speed up your departure to another place of business. In order to be most effective in this approach, clearly communicate your desire in a respectful way to those who make such decisions.

  1. Seek a new place of employment.

This is probably the most difficult and extreme option. Some of you may have been working in your company for years, if not decades. Starting your career over at a new company may be both frightening and intimidating. However, a clear conscience and an enjoyable workplace may well be worth the transition. Consult with business owners and professionals in your church in order to seek advice before initiating the change. Hopefully, this will make your transition smoother.

At the end of the day, we have to recognize that Sunday and Monday are on a collision course. Our faith impacts the way we work. Our faith influences our business practices and decisions. In fact, our faith should inform what we do Monday through Friday. There should be no division between the sacred and the secular in our lives. Who we are on Sunday should be exactly who we are Monday through Friday.

When God first created mankind, he placed him in the garden to work. In Genesis 2:15 we read, “Then the Lord God took the man and put him into the garden of Eden to cultivate it and keep it.” We were created to work. But we were also created to worship. Every aspect of what we do is influenced by our relationship with God. Paul writes, “Whether, then, you eat or drink or whatever you do, do all to the glory of God” (1 Corinthians 10:31). Paul was not simply talking about Sunday morning worship. “Whatever you do” includes our jobs. Therefore, we need to seek to bring God glory seven days a week.

Supreme Court to Hear Oral Arguments on Same-Sex Marriage Today

~ Evan Lenow

Supreme_Court_US_2010The Supreme Court will hear oral arguments for Obergefell v. Hodges regarding the constitutionality of same-sex marriage this morning. The Court will consider two primary questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The answers to these questions will decide the future of marriage across the United States. If the answer to the first question is “Yes,” then same-sex marriage will be legalized nationwide, and the second question would be irrelevant. If the answer to the first question is “No,” but the second question is answered “Yes,” then it will authorize de facto same-sex marriage across the country. If both questions are answered “No,” then the status quo will continue.

You can follow a live blog of the oral arguments from SCOTUSblog at http://live.scotusblog.com/Event/Live_blog_Obergefell_v_Hodges. The live blog launches at 9:45 a.m. (CDT).

This case has the potential to be a defining Supreme Court decision for this generation. It could possibly change the definition of marriage for generations in our country. It has the potential to undermine the most fundamental institution in society, and I do not believe that to be an overstatement.

I encourage you to join with the Ethics & Religious Liberty Commission and others as we pray for marriage. A sample prayer guide can be found at http://erlc.com/article/prayformarriage. We should also pray for the Supreme Court justices by name as the hear the arguments today. They are John Roberts (Chief Justice), Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Let us heed the words of Paul to his son in the faith, Timothy, as he wrote:

First of all, then, I urge that entreaties and prayers, petitions and thanksgivings, be made on behalf of all men, for kings and all who are in authority, so that we may lead a tranquil and quiet life in all godliness and dignity. (1 Tim 2:1-2)